HomeMy WebLinkAbout07 - Mesa Drive Widening ProjectCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 7
May 24, 2005
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Antony Brine, P.E.
949 -644 -3311
tbrine@city.newport-beach.ca.us
SUBJECT: MESA DRIVE WIDENING PROJECT -APPROVAL OF PROFESSIONAL
SERVICES AGREEMENT WITH CIVIL WORKS ENGINEERS
RECOMMENDATIONS:
1. Approve a Professional Services Agreement with Civil Works Engineers, of Costa
Mesa, California, for design of widening Mesa Drive at the intersection of Irvine
Avenue at a contract price of $64,734 and authorize the Mayor and City Clerk to
execute the Agreement.
2. Authorize a Budget Amendment in the amount of $ 36,054 from the unappropriated
balance of the Circulation & Transportation Fund to Account No. 7261- C5200665.
DISCUSSION:
The City has been working cooperatively with the County on a project to widen Mesa
Drive westerly of Irvine Avenue, as part of the larger County project to widen Irvine
Avenue between University Drive and Bristol Street. The goal of the Mesa Drive
widening project is to allow the east approach on Mesa Drive to be re- striped to provide
a dual left -turn lane for traffic turning on to southbound Irvine Avenue and the current
right -turn lane to become a through and right -turn lane. The west approach of Mesa
Drive will need to be physically widened to create an appropriate alignment with the
east approach.
The Irvine Avenue widening project was begun by the County over ten years ago, and
then shelved as a result of the bankruptcy. Due to administrative. constraints, the
County did not include the Mesa Drive work when the Irvine Avenue project design was
started up again in 2001. When the City brought this oversight to the County's
attention, they were unsure whether they would be able to fund the Mesa Drive
improvements.
In March 2002, the City retained the firm of MetroPointe Engineers to prepare
preliminary plans for the Mesa Drive improvements. A Professional Services
Agreement with MetroPointe Engineers was approved by the City Council on March 12,
2002 in the amount of $ 87,060. MetroPointe Engineers proceeded with design work on
the project and completed approximately 50% of the work when the project was put on
hold by the County in April 2003. MetroPointe Engineers has since reorganized, and the
SUBJECTNesa Drive Widening Project — Approval of Professional Services Agreement with Civil Works Engineers
Date: May 24, 2005
Page 2
key staff members that were working on this project now work for a new firm known as
Civil Works Engineers.
The current scope of professional services will include the completion of original design
tasks including: survey work, preparation of right -of -way exhibits, geotechnical
investigation, utility coordination /relocation, a drainage study, and cost estimate.
Additional design services are now required due to the project delay, the County re-
design of Irvine Avenue widening, additional wall design, supplemental survey work,
and additional geotechnical work.
At the time the project was put on hold, the City had compensated MetroPointe
Engineers a total of $ 58,380. The remaining original contract balance is $28,680. The
new total contract amount with Civil Works Engineers is $64,734. An amount of
$36,054 is required to fund the additional design services as outlined above.
The County has agreed to reimburse the City for the costs of having Civil Works
Engineers complete the project design.
It is recommended that the City advance Circulation and Transportation funds for this
design effort in the amount $ 36,054. When the City requests reimbursement from the
County (as provided in a Cooperative Agreement), a Budget Amendment will be
processed.
Funding Availability:
Upon approval of the requested budget amendment, sufficient funds for this project will
be available in the following account:
Account Description
Environmental Review:
Account Number Amount
7261- C5200665 $64,734
Engineering design services are not a project as defined in the California Environmental
Quality Act (CEQA) Implementing Guidelines. An environmental review and the
appropriate documentation will be prepared after the scope of construction work has
been finalized.
Prepared by: Submitted
Antony Brine, P. F,/ ' S phe G.`Badum
Transportation Engineer ubli orks Director
Attachments: Scope of Services
Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT WITH
CIVIL WORKS ENGINEERS, INC.,
FOR THE MESA DRIVE /IRVINE AVENUE INTERSECTION IMPROVEMENTS
THIS AGREEMENT is made and entered into as of this _ day of
2005, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and CIVIL WORKS ENGINEERS, INC., a corporation, whose address is 3151
Airway Avenue, Suite S -2, Costa Mesa, California, 92626 ( "Consultant "), and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business
as it is now being conducted under the statutes of the State of California
and the Charter of City.
B. City is planning to widen Mesa Drive west of Irvine Avenue to allow the
east approach on Mesa Drive to provide a dual left-turn lane. City has
been working cooperatively with the County of Orange on the proposed
improvements, which are part of a larger County project to widen Irvine
Avenue between University Drive and Bristol Street. City also plans to
construct storm drain and other improvements at the Mesa DrivetIrvine
Avenue intersection in conjunction with the Mesa Drive widening project.
C. In March 2002, City retained the firm of MetroPointe Engineers to prepare
preliminary engineering plans for the improvements. MetroPointe
Engineers proceeded with the design work and completed approximately
50% of the work when the widening project was put on hold by the County
in April 2003 due to budgetary constraints. City's contract with
MetroPointe expired on March 31, 2002. MetroPointe Engineers has
since reorganized, and the project manager and other key personnel on
the project now work for Consultant.
D. City desires to engage Consultant to complete the engineering design
work for the Mesa Drive /Irvine Avenue intersection improvements.
Specifically, City wants Consultant to perform the following tasks: (1)
Complete the engineering design, survey work, geotechnical investigation,
and utility coordination; (2) Prepare the retaining wall plan and details; (3)
Prepare the construction plans, specifications, and cost estimates; (4)
Prepare the landscaping and irrigation plans; (5) Attend meetings with the
City and County, as necessary; and (6) other tasks as required (the
"Project ").
E. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this
Agreement.
F. The principal members of Consultant for purposes of Project shall be
Marie Marston, P.E., and Francois Zugmeyer, P.E.
G. City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant, and
desires to retain Consultant to render professional services under the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31st day of December, 2006, 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.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays
due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable
time extensions for unforeseeable delays that are beyond Consultant's
control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit 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
2
exceed Sixty-Four Thousand, Seven Hundred and Thirty-Four Dollars
($64,734.00) without additional authorization from City. No billing rate changes
shall be made during the term of this Agreement without the prior written
approval of City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person 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.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
advance by City. Unless otherwise approved, such costs shall be limited
and include nothing more than the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the 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.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Marie Marston,
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
3
replacement personnel to the Project without the prior written consent of City.
City's approval shall not be unreasonably withheld with respect to the removal or
assignment of non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. Antony
Brine, P.E., shall be the Project Administrator and shall have the authority to act
for City under this Agreement. The Project Administrator or his /her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all
such materials in a timely manner so as not to cause delays in
Consultant's work schedule.
B. Provide 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 and as defined above.
C. Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the
n
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license
during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties) from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work negligently
performed or services provided under this Agreement (including, without
limitation, defects in workmanship or materials and /or design defects [if the
design originated with Consultant]) or Consultant's presence or activities
conducted on the Project (including the negligent and /or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or
indirectly by any of them or for whose acts they may be liable or any or all of
them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
active negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
R
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the 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 piior to commencement
of work. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
R
D. Coveraqe Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days prior to such change. The insurer shall
agree to waive all rights of subrogation against City, its officers,
agents, employees and volunteers for losses arising from work
performed by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection witF
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds
with respect to liability arising out of work performed by or on behalf
of the Consultant.
This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
7
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
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
City and Consultant agree that subconsultants may be used to complete the
work outlined in the Scope of Services. The subconsultants authorized by City to
perform work on this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in
this Agreement shall create any contractual relationship between City and
M
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. 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
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.
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.
[Optional Paragraph] Consultant shall provide to City a copy of digital ACAD
and tiff image 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 CITY in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file of City Title Sheets. All written documents shall be
■
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
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 authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
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 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 of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant 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.
10
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 paragraph is
intended to limit City's rights under 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
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for 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.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant 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: Antony Brine, P.E.
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3329
Fax: 949 - 644 -3318
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Marie Marston, P.E.
Civil Works Engineers, Inc.
3151 Airway Avenue, Suite S -2
Costa Mesa, CA 92626
Phone: 714- 966 -9060
Fax: 714 - 966 -9085
11
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance 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, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services
satisfactorily performed and costs incurred up to the effective date of termination
for which Consultant has not been previously paid. On the effective date of
termination, Consultant shall deliver to City all reports, Documents and other
information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
29. 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. 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.
31. 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.
32. 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,
IM
33. 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.
34. 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.
35. 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.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By:
Aaron C. Harp
Assistant City Attorney
ATTEST:
to
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
in
Mayor
for the City of Newport Beach
CIVIL WORKS ENGINEERS, INC.:
By:
Corporate Officer
Title:
Print Name:
By:
Financial Officer
Title:
Print Name:
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
13
CMI works Enginows
To: Rich Edmonton From: Marie Marston
City of Newport Beach
Job No: 219 -04 -02 Date: March 14, 2005
3151 Airway Ave. #S -2
Costa Mesa, CA 92626
Bus: (714) 966 -9060
Fax: (714) 966 -9085
Re: Mesa Dr./ Irvine Ave. Intersection cc: Francois Zu9meyer
❑ For Your Info v For Review ❑ Please Comment ❑ Please Reply ❑ Please Return ❑ For Your Use
The purpose of this memo is to describe our understanding of the scope of work required for the
completion of the final items of work in preparing the construction documents and to submit our fee
estimate to complete the task for the above referenced project.
This project was put on hold shortly after our April 16, 2003 meeting, when we met with the City and with
the County to present the status of the project and the percent complete of each original task. The status
at that date is summarized below:
Task 1 — Supplemental Ground Survey / Augment Base Maps
100%
Task 2 — Drainage Study
80%
Task 3 — Geotechnical Investigation and Report
95%
Task 4 — Utility Coordination
75%
Task 5 — Right -of -Way Exhibits
0%
Task 6 — Plans
1. Typical Cross Sections / Details / Notes
90%
2. Street Plan & Profile
75%
3. Storm Drain Plan & Profile
0%
4. Storm Drain Details
0%
5. Retaining Wall Plan & Profile
80%
6. Retaining Wall Details / Aesthetics
0%
7. Construction Details
0%
B. Signing and Striping Plan
75%
9. Landscaping Plan
0%
10. Irrigation Plan
0%
Task 7 — Specifications Review
0%
Task 8 — Cost Estimate / Bid List
50%
Task 9 — Meetings, Coordination, and Submittals
35%
At this time, the City and County desire to complete the project. Therefore, we have revisited our original
proposal, progress previously made, identified additional work needed for the completion, and offer this
letter proposal to the City. Our original fee estimate was revised by decreasing hours allocated to each
task according to the percent complete above. We added to the original tasks required additional services
due to the several years delay, the County re- design of Irvine Avenue widening and related revisions,
additional wall design, required supplemental survey, and additional involvement of the geotechnical
consultant. A breakdown of hours remaining to the original contract and those assigned to the new tasks
is provided in the attached spreadsheet. To these hours has been assigned our 2005 rates to calculate
the proposed fee.
Regarding the survey, per Javier Soto 2/8/05 e-mail, controls used for the original survey are different
than the one used by the County. Survey points from the County were received and will be reviewed to
evaluate the difference between the two surveys and the need for supplemental information. In the even
supplement survey need is determined, we are planning to use the original surveyor to minimize
additional survey costs. A budget item has been included for this task and can be deleted if not required.
Below is a summary of the original contract balance with MetroPointe and the requested new contract
value for Civil Works Engineers, Inc.:
Original MetroPointe Contract $ 87,060.00
MetroPointe Billed to Date $ 58,379.59
MetroPointe Existing Contract Balance $ 28,680.41
Additional Services requested by Civil Works above $ 36,053.62
the MetroPointe contract balance.
Total requested by Civil Works, Inc. for the Final $ 64,734.00
Tasks
Please review and do not hesitate to call if you have any questions. Your approval will be considered as
a notice to proceed.
Page 2
CLIENT:
City of Newport Reach
Civil Works Engineers, Inc.
PROJ:
Mesa Drive / Irvine Avenue Intersection Improvements
Project
Rate
JOB NO:
219-04
SUMMARY FEE ESTIMATE
DATE:
05/11/05
LABOR
Class
Position/Name
Hours
Rate
Total
A
Principal
4
$120
$480
E
Jr. Engineer/ CADD Designer
23
$75
$1,725
F
CADD Technician
65
$65
$4,225
Surveys
J
Two-Person Survey Crew
0
$145
$0
L
Office Surveyor
0
$70
$0
TOTAL LABOR:
493
$45,060
REIMBURSABLE EXPENSES
Base
% Mark-up
Total
02
Plotting
04
Courier
05
oth6rDlrect Costs
FVFAL KUMBURSABLE EXPENSES:
5%
$2,250
SUBCONTRACTS
Base
% Mark-up
Total
TOTAL SUBCONTRACTS
$17,424
PROPOSEDFEE
Total Labor afIEN111W.Rates
Moon
Reimbursable Expenses
$2,250
PROPOSED BUDGET:
$64,734
Proposal By Project Manager
M. Marston
Summary
Existing Mo1ooPoin1oContract
$87,000�00
Billed 1u Date byW1o1roPoin10
Mo1ruPoin10 Remaining Contract Balance
$28.680.41
Additional services requested by Civil Works
Total requested by Civil Works
$64'734.03
City of Newport Beach
BUDGET AMENDMENT
2004 -05
EFFECT ON
BUDGETARY FUND BALANCE:
Description
Division
Increase Revenue Estimates
X
Account
Increase Expenditure Appropriations AND
C5200665 Mesa Drive Widening
Division
Transfer Budget Appropriations
SOURCE:
Account
Number
from existing budget appropriations
PX
from additional estimated revenues
Number
from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
NO, BA- 062
AMOUNT: $3s,osa.00
Increase in Budgetary Fund Balance
X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
To increase expenditure appropriations from unappropriated fund balance for the Mesa Drive widening project.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
260 3605
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Amount
Description Debit
Transportation & Circulation -Fund Balance $36,054.00
Description
Signed
Approval: Administrative Services Director
Signed: CA.-�L
AdminkirAive Approval:
Signed
City Council Approval: City Clerk
Credit
$36,054.00
Date
Date
Date
Description
Division
Number
7261 Transportation & Circulation
Account
Number
C5200665 Mesa Drive Widening
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed
Approval: Administrative Services Director
Signed: CA.-�L
AdminkirAive Approval:
Signed
City Council Approval: City Clerk
Credit
$36,054.00
Date
Date
Date