HomeMy WebLinkAbout10 - PSA with DMS for Big Canyon Storage BuildingSEW PART
CITY O FF
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O T BEACH
City Council Staff Report
Agenda Item No. 10
January 8, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
David A. Webb, Public Works Director
949 - 644 -3311, dawebb @newportbeachca.gov
PREPARED BY: Fong Tse, Principal Civil Engineer
APPROVED: o'
TITLE: Approval of Professional Services Agreement with DMS Consultants,
Inc., for the Design of a Storage Building at the Big Canyon Reservoir
ABSTRACT:
Architectural, Landscape Architectural, and Civil Engineering design services are needed for a
new storage building proposed at the Big Canyon Reservoir. Staff requests approval of a
professional services agreement to hire a consultant to perform the design work and prepare
the construction documents.
RECOMMENDATION:
Approve a Professional Services Agreement (PSA) with DMS Consultants, Inc., of Garden
Grove, California, at a cost not to exceed $136,770.00 and authorize the Mayor and City Clerk
to execute the Agreement.
FUNDING REQUIREMENTS:
There are sufficient funds in Project Account Nos. 7014- C100239, 7502- C100239, and 7541-
C100239 to fund this contract.
DISCUSSION:
The City's Corporate Yard located at 592 Superior Avenue and Utility Yard at 949 W. 16th
Street are currently the only facilities where materials are stocked for the Municipal Operation
Services Department field crews. While crews working at a nearby location can conveniently
return to the Yards for the needed supplies not carried on their vehicles, it increases costs and
response time if they are working at more distant locations within the easterly and southerly
portions of the City such as East Bluff, Newport Coast or Corona Del Mar and need to return to
one of the City Yards. Additionally, in an effort to consolidate the two existing City Yards,
some additional space for material storage and lay down items will need to be provided at the
reservoir location to allow for this consolidation of the two existing yards.
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Approval of Professional Services Agreement with DMS Consultants, Inc. for the Design of a
Storage Building at the Big Canyon Reservoir
January 08, 2013
Page 2
To accommodate this need, staff has identified an area in the most westerly portion of the
City's Big Canyon Reservoir property as the site where a small 3,500 SF materials storage
building and material storage area can be constructed. The existing dwelling units at this site
were recently removed in order to ready the site (see attached location map). The new storage
building along with other site surface improvements will be designed and landscaped to fit into
the surrounding area.
Staff solicited interest from five firms to submit their qualifications for the needed design work.
All five firms responded and attended a job walk at the site. Staff reviewed the submitted
Qualifications and invited them to propose on the project. The three firms that proposed were
DMc Engineering, DMS Consultants, Inc., and W.G. Zimmerman Engineering, Inc.
Staff reviewed the received Proposals and selected DMS Consultants, Inc. (DMS) as the firm
most qualified to provide the City with the best overall services. Upon selection, staff noticed
the fees for one of the itemized work tasks proposed by DMS might have been entered
incorrectly as it was not consistent with staff's cost estimate. DMS was asked to revisit that
fee item with its subconsultant and respond to the City. DMS' final proposed fee as presented
in the PSA has been accordingly revised and is consistent with market rates. Staff therefore
recommends PSA approval.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California Environmental
Quality Act ( "CEQA ") pursuant to Section 15303 (New Construction or Conversion of Small
Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential to have a significant effect on the environment. This exemption
allows the construction of commercial buildings not exceeding 10,000 square feet in floor area
in urbanized areas on sites zoned for such use, if not involving the use of significant amounts
of hazardous substances, where all necessary public services and facilities are available, and
where the surrounding area is not environmentally sensitive. Consistent with this exemption,
the future proposed storage building would be less than 10,000 square feet in area and would
be located on a developed site that is adequately served by public services and does not
include sensitive resources. In addition; the storage building would not be used to store
hazardous materials.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
Submitted by:
7 e 4
Davi A. Webb
Public Works Director.
Attachments: A. Professional Services Agreement
B. Location Map
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ATTACMENT A
DESIGN PROFESSIONAL SERVICES AGREEMENT
WITH DIVIS CONSULTANTS, INC. FOR
BIG CANYON RESERVOIR AUXILIARY MAINTENANCE YARD
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of this day of January, 2013 ( "Effective Date ") by and between
the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and DMS
CONSULTANTS, INC., a California corporation ( "Consultant "), whose address is 12371
Lewis Street, Suite 203, Garden Grove, CA 92840 and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide engineering services to prepare
"building permit ready" plans and specifications for the Big Canyon Reservoir
Auxiliary Maintenance Yard ( "Project ").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described In this Agreement.
D. The principal member of Consultant for purposes of Project shall be Surender
Dewan, P.E.
E. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2013, unless terminated earlier as set forth herein.
a. SERVICES TO BE PERFORMED
City and Consultant acknowledge that the above Recitals are true and correct
and are hereby incorporated by reference into this Agreement. Consultant shall
diligently perform all the services described in the Scope of Services attached hereto as
Exhibit A and incorporated herein by reference ( "Services" or "Work "). The City may
elect to delete certain services within the Scope of Services at its sole discretion.
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3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.1.1 Notwithstanding the foregoing, Consultant shall not be responsible
for delays due to causes beyond Consultant's reasonable control. However, in the case
of any such delay in the Services to be provided for the Project, each party hereby
agrees to provide notice within two (2) days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) not later than ten
(10) calendar days after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant reasonable time
extensions for unforeseeable delays that are beyond Consultant's control.
3.3 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates or Progress Payments Schedule attached hereto as Exhibit B and
incorporated herein by reference. Consultant's compensation for all Work performed in
accordance with this Agreement, including all reimbursable items and subconsultant
fees, shall not exceed One hundred thirty six thousand, seven hundred, seventy
Dollars and 00/100 ($136,770.00) without prior written authorization from City. No
billing rate changes shall be made during the term of this Agreement without the prior
written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit B to this Agreement, or specifically approved in writing in
advance by City.
DMS CONSULTANTS, INC. Page 2 4 of 22
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Surender Dewan, P.E. to
be Its Project Manager. Consultant shall not remove or reassign the Project Manager or
any personnel listed in Exhibit A or assign any new or replacement personnel to the
Project without the prior written consent of City. City's approval shall not be
unreasonably 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 the City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. Fong
Tse, P.E., Principal Civil Engineer or his /her designee, shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator or his /her designee shall represent City in all matters pertaining to the
Services to be rendered pursuant to this Agreement.
CITY'S RESPONSIBILITIES
7.1 To assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
7.1.1 Provide access to, and upon request of Consultant, one (1) copy of
all existing relevant information on file at City. City will provide all such existing relevant
information in a timely manner so as not to cause delays in Consultant's Work schedule.
7.1.2 Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the required bid
documents with City's reproduction company. All other reproduction will be the
responsibility of Consultant.
DIMS CONSULTANTS, INC. Page 3 5 of 22
7.1.3 Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City. By delivery of completed Work, Consultant certifies that
the Work conforms to the requirements of this Agreement; all applicable federal, state
and local laws; and the highest professional standard.
8.3 Consultant represents and warrants to City that it has, shall obtain, and
shall keep In full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties) from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise under this Agreement or in
any manner relate (directly or indirectly) to the negligence, recklessness, or willful
misconduct of the Consultant or its principals, officers, agents, employees, vendors,
suppliers, subconsultants, subcontractors, anyone employed directly or Indirectly by any
of them or for whose acts they may be liable or any or all of them.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to Indemnify the Indemnified Parties from any Claim arising from the
sole negligence, active negligence or willful misconduct of the Indemnified Parties.
Nothing in this indemnity shall be construed as authorizing any award of attorney's fees
in any action on or to enforce the terms of this Agreement. This indemnity shall apply to
DMS CONSULTANTS, INC. Page 4 6 of 22
all claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Contractor or Its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant Is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and progress
of the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
DMS CONSULTANTS, INC. Page 5 7 of 22
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint- venture or syndicate or cotenancy, which shall result in changing the
control of Consultant. Control means fifty percent (50 %) or more of the voting power, or
twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint -
venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. The City is' an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and the City. Except as specifically authorized
herein, the Services to be provided under this Agreement shall not be otherwise
assigned, transferred, contracted or subcontracted out without the prior written approval
of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
DMS CONSULTANTS, INC. Page 6 e of 22
17.3 All improvement and /or construction plans shall be prepared with indelible
waterproof ink or electrostaticly plotted on standard twenty -four inch (24 ") by thirty -six
inch (36 ") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to
City 'As- Built' drawings and a copy of digital Computer Aided Design and Drafting
( "CADD ") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90)
days after finalization of the Project. For more detailed requirements, a copy of the City
of Newport Beach Standard Design Requirements is available from the City's Public
Works Department.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect In charge of or responsible for the Work. City agrees that Consultant shall
not be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage conditions
or duration; or (c) any use by City, or anyone authorized by City, of CADD data for
additions to this Project, for the completion of this Project by others, or for any other
Project, excepting only such use as Is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a
CD, and should comply with the City's digital submission requirements for improvement
plans available from the City's Public Works Department. The City will provide
Consultant with City title sheets as AutoCAD file(s) In .dwg file format. All written
documents shall be transmitted to City in formats compatible with Microsoft Office
and /or viewable with Adobe Acrobat.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents the
Consultant's judgment as a design professional and is supplied for the general guidance
of City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the accuracy
of such opinions as compared to consultant or contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement or alleged infringement of any United States' letters patent, trademark, or
copyright, including costs, contained In Consultant's Documents provided under this
Agreement.
DMS CONSULTANTS, INC. Page 7 9 of 22
22. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
Identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or his /her designee with respect to such
disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of return that City earned on its investments during the time period, from the
date of withholding of any amounts found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
26.1 The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such Interest.
26.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for Immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
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City for any and all claims for damages resulting from Consultant's violation of this
Section.
27. NOTICES
27.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first -
class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Consultant to City shall be addressed to City at:
Attn: Fong Tse, P.E., Principal Civil Engineer
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 -644 -3311
Fax: 949 - 644 -3318
27.2 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Surender Dewan, P.E.
DMS CONSULTANTS, INC.
12371 Lewis Street, Suite 203
Garden Grove, CA 92840
Phone: 714- 740 -8840
Fax: 714- 740 -8842
28. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. The Consultant and the City expressly agree that in addition to any claims
filing requirements set forth In the Agreement, the Consultant shall be required to file
any claim the Consultant may have against the City in strict conformance with the Tort
Claims Act (Government Code sections 900 et seq.).
29. TERMINATION
29.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
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reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
29.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid.. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
30. STANDARD PROVISIONS
30.1 Compliance with all Laws. Consultant shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, Including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30.2 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
30.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
30.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
30.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
30.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
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30.7 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
30.8 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
30.9 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex; age or any other impermissible basis under law.
30.10 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
30.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument..
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DIMS CONSULTANTS, INC. Page 1113of22
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE A California municipal corporation
Date: I z 137/7- Date:
'Z�C' P (('r) By:
Aaron C. Harp Keith Curry
City Attorney 40 Mayor
ATTEST: CONSULTANT: DMS CONSULTANTS,
Date: INC., a California corporation
Date:
By: By:
Leilani I. Brown Surender Dewan, P.E.
City Clerk President
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
documenf3
DMS CONSULTANTS, INC. Page 1214 of 22
EXHIBIT A
SCOPE OF SERVICES
• Prepare CEQA, SWPPP, and other environmental related documents.
• Prepare site demolition, removal, and grading plans. The existing buildings
within the project footprint will be removed by others prior to construction and is
not a part of this scope of work.
• Prepare "building permit ready" construction bid documents for the
construction /installation of a multi -bays 3,000 square feet ventilated masonry
blocks or prefabricated steel materials storage building complete with roll -up
doors and a restroom.
• Prepare "building permit ready" construction bid documents for a separate 500
square feet office building with a restroom.
• Prepare irrigation and landscaping plans and specifications.
• Prepare a tabulation of probable costs.
• Attend a minimum of eight (8) progress meetings with staff.
• Attend two (2) City Council presentation meetings.
• Attend two (2) presentation meetings with the neighboring communities.
DMS CONSULTANTS, INC. Page A -1 1 5 of 22
EXHIBIT B
SCHEDULE OF BILLING RATES
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Rev1sed: 11119/12
FEE • ROPOS RL
Big Canyon Reservoir Auxiliary Maintenance Yard
Contract Number C -5222
1.
Records and Research ...................................................... ............................... ......................$1.400.00
2.
Survey - Includes Aerial Sub-Consultant +10% ................. ............................... ......................$9,320,00
3.
Site Plan ............................................................................ ............................... ......................$2,800.00
4.
Utilities ............................................................................... ............................... ......................$1,200.00
5,
Geotechnical Investigations - Sub-Consultant + 10% ........ ............................... .....................$14,400.00
6.
Landscape and Irrigation Plans - Sub-Consultant + 10% ... ............................... ......................$7,150.00
7.
Architectural and Structural Plans - Sub-Consultant + 10 % .............................. .....................$68,000.00
8.
Grading and Drainage Plan ................................................ ............................... .....................$6,400.00
9.
CEQA Documents, WQMP and SWPPP .......................... ............................... .....................$10,500.00
10.
Project Specifications and Cost Estimates ........................ ............................... ......................$5,800.00
11.
Project Coordinat ion ........................................................... ............................... .......:.............$4,800,00
8 - Project Meetings
2 - City Council Meetings
2 - Neighborhood Community Meetings
12.
Reproduct ions - Allowance ................................................ ............................... ......................$5,000.00
TOTAL DESIGN FEE FOR PROJECT: $136,770.00
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DIVI s Consultants, Inc.
Big Canyon Reservoir Auxiliary Maintenance Yard
Contract Number C•5222
ProjectManager .........................................................................................::..... ............................... $160.00
ProjectEngineer ...........::...::................::.:....:...................... ............................... $12&0D
DesignEngineer ..................::............................................................................ ............................... $105.00
SeniorPlan Checkerr .............................................::.........:::...........................::.... ............................... $70.00
Two -Man Field Party .....................................::................................................... ............................... $195.00
Three -Man Field Party .....................................:.................::..:...........:::.......::.... ............................... $225.00
SurveyManager .................................::..........................:...................:.............. ............................... $115.00
Clerical............................................... ... ... ... ..... ..... .... .:. ....... ... ..... .... .............. ... ..................................... $55.00
RM Architecture
Principal.....................................::...........................................:.......................... ............................... $110.00
ProjectManager .::...:.:....................................................................................... ............................... $100.00
Drafting.................:....................................................................:::....................... ............................... $60.00
Clerical...............................................................................::. ............................... $35.00
RSSE, Inc, (Sub - Consultant)
Principal..::....................................................................::.................................... ...............................
$175.00
ProjectManager ......:..:......:............................................................................... ...............................
$140.00
Project/ Senior Engineer ...........:.........:..::....................:..........:.......................... ...............................
$110.00
DesignEngineerr ...........::..............................................................:::::.................. ...............................
$85.00
Drafting..........................::...................................................::............................... ...............................1
$65.00
Clerical...........................:::.:::.:::..:...................:..::................................................ ...............................
$50.00
TMAD Taylor and Gaines (Sub-Consultant)
Principal................................................:.:......................................................... ..........: „:,.................
$205.00
ProjectManager ....::.................................::.................................................:..... ...............................
$180.00
Project/ Senior Engineer ...............................
$165.00
....................................................................................
Engineer:::.....................................................::..............................................::::.. ...............................
$14.00
Designer................................................::................................................:......... ..............................:
$125.00
CADDOperator .....................::...::....................................................................... ............... :...............
$90.00
SurveyManager ...::.......::...:......:..................:...:.....................:.... ..........:.........::..I...... I.....................
$115.00
Construction Administrator .....:...........................................................::............. ...............................
$140.00
WordProcessor .........................................................................a......... 1.............. ...............................
$70.00
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CONSULTANTS. INC.
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EXHIBIT C
1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1.1 Provision of Insurance. Without limiting Consultant's indemnification of
City, and prior to commencement of Work, Consultant shall obtain, provide and maintain
at its own expense during the term of this Agreement, policies of insurance of the type
and amounts described below and in a form satisfactory to City. Consultant agrees to
provide insurance in accordance with requirements set forth here. If Consultant uses
existing coverage to comply and that coverage does not meet these requirements,
Consultant agrees to amend, supplement or endorse the existing coverage.
1.2 Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders' Rating
of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager..
1.3 Coverage Requirements.
1.3.1 Workers' Compensation Insurance. Consultant shall maintain
Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance
with limits of at least one million dollars ($1,000,000) each accident for bodily injury by
accident and each employee for bodily injury by disease in accordance with the laws of
the State of California, Section 3700 of the Labor Code.
1.3.1.1 Consultant shall submit to City, along with the certificate
of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
1.3.2 General Liability Insurance. Consultant shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with coverage at
least as broad as provided by Insurance Services Office form CG 00 01, in an amount
not less than one million dollars ($1,000,000) per occurrence, two million dollars
($2,000,000) general aggregate. The policy shall cover liability arising from premises,
operations, products - completed operations, personal and advertising injury, and liability
assurned under an insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope of coverage
for liability assumed under a-contract. -
1.3.3 Automobile Liability Insurance. Consultant shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of the Consultant arising out
of or in connection with Work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit each accident.
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1.3.4 Professional Liability (Errors & Omissions) Insurance. Consultant
shall maintain professional liability insurance that covers the Services to be performed
in connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) per claim and in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the effective date of this agreement and Consultant
agrees to maintain continuous coverage through a period no less than three years after
completion of the services required by this agreement.
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
1.4.1 Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and volunteers or
shall specifically allow Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. Consultant
hereby waives its own right of recovery against City, and shall require similar written
express waivers from each of its subconsultants.
1.4.2 Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, but not including
professional liability, shall provide or be endorsed to provide that City and its officers,
officials, employees, and agents shall be included as insureds under such policies.
1.4.3 Primary and Non Contributory. All liability coverage shall apply on
a primary basis and shall not require contribution from any insurance or self - insurance
maintained by City.
1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30)
days notice of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
1.5 Additional Agreements Between the Parties. The parties hereby agree to
the following:
1.5.1 Evidence of Insurance. Consultant shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other endorsements
as specified herein for each coverage. Insurance certificates and endorsement must be
approved by City's -Risk- Manager prior -to- commencement of performance - Current
certification of insurance shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
1.5.2 City's Right to Revise Requirements. The City reserves the right at
any time during the term of the Agreement to change the amounts and types of
insurance required by giving the Consultant sixty (60) days advance written notice of
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such change. If such change results in substantial additional cost to the Consultant, the
City and Consultant may renegotiate Consultant's compensation.
1.5.3 Enforcement of Agreement Provisions. Consultant acknowledges
and agrees that any actual or alleged failure on the part of the City to inform Consultant
of non - compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
1,5.4 Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by.any
insurance. Specific reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party or insured to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
1.5.5 Self- insured Retentions. Any self - insured retentions must be
declared to and approved by City. City reserves the right to require that self- insured
retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be
considered to comply with these requirements unless approved by City.
1.5.6 City Remedies for Non Compliance If Consultant or any
subconsultant fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to terminate this
agreement, or to suspend Consultant's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option, be
deducted from amounts payable to Consultant or reimbursed by Consultant upon
demand.
1.5.7 Timely Notice of Claims. Consultant shall give City prompt and
timely notice of claims made or suits instituted. that arise out of or result from
Consultant's performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies.
1.5.8 Consultant's Insurance. Consultant shall also procure and
maintain, at its own cost and expense, any additional kinds of insurance, which in its
own judgment may be necessary for its proper protection and prosecution of the Work.
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ATTACHMENT B LOCATION MAP
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