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HomeMy WebLinkAbout08 - Big Canyon Joint Sewer ProjectCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. s June 14, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Michael J. Sinacori, P. E. 949 - 644 -3311 msinacori@city.newport-beach.ca.us SUBJECT: BIG CANYON AREA JOINT SEWER PROJECT — APPROVAL OF A REIMBURSEMENT AGREEMENT WITH ORANGE COUNTY SANITATION DISTRICT AND APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH WALDEN & ASSOCIATES FOR DESIGN AND CONSTRUCTION SUPPORT SERVICES RECOMMENDATIONS: 1. Approve Reimbursement Agreement with the Orange County Sanitation District for the realignment and rehabilitation of the Big Canyon Trunk Sewer. 2. Approve Budget Amendment appropriating $140,450 in account 7251- C5600292 and increase revenue estimates by the same amount for reimbursement from OCSD to be received in FY 05/06. 3. Approve a Professional Services Agreement with Walden & Associates, of Irvine, California, for design and construction support services for the Big Canyon Trunk Sewer at a contract price of $140,450 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: The Orange County Sanitation District's (OCSD) Big Canyon Trunk Sewer traverses through the Big Canyon development bordered by MacArthur Blvd, San Joaquin Hills Road, Jamboree Road and Ford Road. A majority of the trunk is located on the Big Canyon Country Club (BCCC) Golf Course and a small portion is within private developments. The Big Canyon Trunk currently has a 15 -foot wide easement through the golf course and homeowner's property that has limited vehicle access due to steep slopes and lakes. This requires OCSD to utilize the BCCC cart paths and the adjacent Home Owners Association's (HOA) private roads. Currently, access is limited to Mondays, when the golf course is closed. SUBJECT: Big Canyon Area Joint Sewer Project — Approval of Reimbursement Agreement with Orange County Sanitation District and Approval of Professional Services Agreement with Walden & Associates for Design and Construction Support Services June 14, 2005 Page 2 The OCSD 2004 -05 Capital Improvement Program Budget includes two projects to address areas where structural failure of the pipeline has occurred. These projects have been delayed since 1999 due to various details involving the BCCC and the adjacent homeowner's association, and the unexpectedly high costs associated with replacing the 40 -foot deep sewer. The total project budget for these projects is $2,000,000. The City owns and maintains the remaining sewers within the Big Canyon Development. Several of the City sewers traverse through easement areas that make access, and subsequently maintenance, difficult at best. As part of the City's Master Plan of Sewers, a majority of sewers were televised within the Big Canyon area in 2002. As of this date, Staff has not completed televising all of the sewer mains because of access coordination difficulties. Though most of the mains televised appeared to have adequate structural integrity, they did show signs of root damage at the joints and, in some cases, joint failure has occurred. In the 05/06 proposed CIP all easement sewer mains are slated for an internal liner to eliminate the root intrusion and to repair broken joints. This work was to be included within the FY 2005/06 Citywide Sewer Main Master Plan Improvements project ($500,000). The cost of the needed work within the Big Canyon Area will determined in the design process. BCCC is interested in the City and OCSD pursuing a joint construction project to minimize the overall construction impacts to the Golf Course and coordinate with their planned site and clubhouse improvements scheduled to begin this fall and next spring respectively. BCCC is offering OCSD a new alignment outside the fairways for better access, a wider access easement (up to 25 -feet wide) to allow for large vehicles, and the use of open cut construction methods to reduce OCSD overall construction costs. BCCC has also requested that the City take the lead on the overall sewer improvements to help expedite and coordinate with their planned improvements (see attached letter). The joint project will also allow the City to relocate deep sewer mains in and around the BCCC Clubhouse area. The proposed reimbursement agreement would contain the following provisions: • OCSD will reimburse the City for costs to design and construct the OCSD sewer improvement project including a 4% administration fee ($80,000 based upon a $2 million project). The OCSD Board has authorized $2,000,000 for the project with the ability to increase that amount with Board approval. A more detailed cost estimate will be available at the conclusion of the design process. • City will pay for the design and construction of the City sewer improvements not required by the OCSD improvements. • City will be the lead on CEQA processing for the project with OCSD reimbursing the City for any costs related to their improvements. • OCSD will have the authority to review and approve all plans, inspect the construction, and approve all change orders. SUBJECT: Big Canyon Area Joint Sewer Project —Approval of Reimbursement Agreement with Orange County Sanitation District and Approval of Professional Services Agreement with Walden & Associates for Design and Construction Support Services June 14, 2005 Page 3 • BCCC will provide new easements to the OCSD and City for the new alignments. The joint construction project will minimize impacts to the community by completing all the improvements in concert with BCCC construction projects. This should also minimize cost impacts for site and road restoration since the larger construction efforts will continue after the sewer improvements are completed. The joint project will also allow both OCSD and the City to take advantage of a larger replacement and lining project that should result in overall lower costs to both agencies. Environmental Review: City Staff has reviewed the City's portion of the project and will recommend to City Council that it be exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302 of the CEQA Implementing Guidelines when the project is authorized by the City Council. This exemption covers the maintenance and alteration of existing public facilities with negligible expansion of the facilities in areas that are not environmentally sensitive. In 1999, OCSD certified a Program Environmental Impact Report (PEIR), which included the Big Canyon Trunk Sewer improvements. An amendment may be necessary to that EIR if new impacts are determined to be outside the impacts identified in 1999. Funding Availability and Schedule: Upon approval of the recommended Budget Amendment, sufficient funds are available in the following account for the immediate need of contracting with Walden and Associates. OCSD will be invoiced for design and construction work as efforts take place and, by the proposed reimbursement agreement, will be reimbursing the City for its expenditures relating to their portion of the joint project. Account Description Account Number Amount Contributions 7251- C5600292 $140,450 The joint project design efforts should be completed this summer with the anticipation of starting the sewer improvements in the fall. Prepared b Submitted by: Mic aeI J. Sinac ri, P.E. t phen G. Bad um Pr' cipal Civil Engineer Public Works Director Attachments: March 28, 2005 letter from Big Canyon Country Club to OCSD Reimbursement Agreement for the Big Canyon Trunk with OSCD PSA with Walden and Associates Budget Amendment (0) Big Canyon Country Club March 28, 2005 Mr. Dave Ludwin Orange County Sanitation District P.O Box 8127 Fountain Valley, Ca. 92728 -8127 RE: OCSD Big Canyon Trunk Sewer line replacement Dear Mr. Ludwin, Thank you for meeting with the City and Big Canyon Country Club (BCCC) on Monday, March 14, 2005 to discuss the subject project. BCCC would like to reemphasize the importance of combining any and all sewer activities into one coordinated project with the City of Newport Beach as the lead agency. We have successfully completed protects similar in nature with the City's coordination, administration and implementation to meet our critical construction time lines. We are confident in the City's ability to coordinate this project in a sensitive manner with the appropriate attention to detail. Planning for a project of this size will require commitments on all parties. The club currently plans for construction of its pond fill project beginning in late August 2005, barring any unforeseen issues. The opportunity for the Trunk Sewer line to be replaced concurrently is advantageous in that disruption to the club would occur roughly at one time. BCCC is available to assist OCSD and the City of Newport Beach in planning the crucial steps to make this project a success. BCCC is also willing to grant new sewer easements to OCSD to accommodate the new alignment. Should you have any questions, please contact Jeff Beardsley our course superintendent with any onsite related issues. Sincerely, �CYI-L��� David H. Voorhees, CCM General Manager Cc: ✓Mike Sinacori Steve Badum Jim Peters Dave Quisling One Big Canyon Drive, Newport Beach, CA 92660 -5299 (949) 644 -5404 • Fax (949) 720 -9338 • bigcanvon @bigcanyoncc.org REIMBURSEMENT AGREEMENT BETWEEN THE ORANGE COUNTY SANITATION DISTRICT (OCSD) AND THE CITY OF NEWPORT BEACH FOR CONSTRUCTION OF THE BIG CANYON TRUNK SEWER IMPROVEMENTS THIS REIMBURSEMENT AGREEMENT ( "Agreement "), is made and entered into on this day of 2005, by and between the: AND ORANGE COUNTY SANITATION DISTRICT, a County Sanitation District, hereinafter referred to as "District"; CITY OF NEVNPORT BEACH, California, a Municipal Corporation, hereinafter referred to as ity. District and City are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as "Parties." RECITALS WHEREAS, District is a duly organized County Sanitation District existing pursuant to the County Sanitation District Act, California Health and Safety Code section 4700, et seq., providing for the ownership, operation, and maintenance of wastewater collection, treatment, and disposal facilities within Orange County, California; WHEREAS, 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 the City; WHEREAS, District owns, operates and maintains a 12 -inch to 15 -inch trunk sewer line within the City located beneath the Big Canyon Country Club ( "BCCC ") and Big Canyon residential development (hereinafter, District's existing sewer line shall be referred to as the "Big Canyon Trunk Sewer," the location of which is depicted on Exhibit A, attached hereto and incorporated in full by this reference); WHEREAS, the Big Canyon Trunk Sewer was built in the 1960s and was subsequently covered by substantial amounts of earth fill during construction of the BCCC and Big Canyon residential development; Page 1 of 10 WHEARAS, as a result of the construction, portions of the Big Canyon Trunk Sewer are buried deep underground (up to 45 feet), making it difficult to properly maintain it; WHERAS, District wants to construct a new sewer main closer to the surface (approximately 8 feet) to allow easier access for maintenance purposes and to extend portions of the City's sewer lines to connect to the new sewer main (hereinafter, District's proposed new line and the portions of the City Sewers to be extended by District shall be referred to as the "OCSD Trunk Sewer Improvements," the proposed location of which is depicted on Exhibit A); WHEREAS, City owns, operates, and maintains numerous sewer lines in the Big Canyon development that connect to the Big Canyon Trunk Sewer (hereinafter the City's existing sewer lines shall be referred to as the ( "City Sewers, ") the location of which are depicted on Exhibit A); WHEREAS, City is planning a sewer improvement project in the Big Canyon area and desires to repair, replace, and realign a portion of the City Sewers that connect to the Big Canyon Trunk Sewer hereinafter "City's Sewer Improvements" the location of which are depicted on Exhibit A); WHEREAS, City and District desire to perform the repairs, replacement and realignment of both the Big Canyon Trunk Sewer and the City Sewers simultaneously so as to minimize the impacts to the public, including the BCCC and surrounding homeowners (hereinafter, the proposed concurrent construction of the OCSD Trunk Sewer Improvement and City's Sewer Improvements shall be referred to as the "Joint Project," the approximate locations of the Big Canyon Trunk Sewer and the City Sewers as they currently exist, and will exist, after the Joint Project is completed are depicted on Exhibit A); WHEREAS, City has agreed to administer and enter into the design and construction contracts for the Joint Project; WHEREAS, City will coordinate and obtain permissions from the BCCC and the Big Canyon Homeowners Associations (hereinafter, the BCCC and Big Canyon Homeowners Association shall be collectively referred to the "HOAs, ") to obtain access to the gated development and the construction and temporary storage space needed for the Joint Project); WHEREAS, City and District each will be responsible for obtaining permanent access easements for their respective sewer lines from the HOAs; WHEREAS, City and District agree that all sewer maintenance responsibilities and ownership rights will be clearly set forth on the design plans and permanently memorialized at the end of the Joint Project when the plans are certified by both parties as "Record Drawings "; and, WHEREAS, District has agreed to reimburse the City for the District's share of Joint Project costs in the manner and subject to the conditions set forth below. Page 2 of 10 AGREEMENT NOW THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows: Section 1: Recitals. The Recitals above are deemed true and correct, are hereby incorporated in this Section as though fully set forth herein, and each Party to this Agreement acknowledges and agrees that they are bound by the same. Section 2: Elements of Agreement. City and District shall work cooperatively together so the Joint Project can be constructed in a manner that minimizes the costs and impacts to the public. The specific terms and conditions governing the elements of this Agreement are set forth hereinafter. Section 3: Citv's Specific Obligations. A. City shall enter into and administer contracts for the design services necessary for the Joint Project, which includes contracting with the necessary engineering consulting services to accomplish the design efforts. B. City shall submit prepared plans and specifications for the design and construction of the Joint Project to the District for review and approval by the District's Director of Engineering. The plans and specifications shall meet District's standards and technical requirements and shall separate bid items so that the City's and District's costs can be easily identified. District shall not unreasonably withhold its approval of the plans and specifications. C. City shall be responsible for compliance with the California Environmental Quality Act ("CEQA ") (Pub. Resources Code, Section 21000 et seq.) for all activities associated with the Joint Project and City shall be the Lead Agency for purposes of the CEQA and, in such capacity, shall conduct such environmental review (whether by Environmental Impact Report, Mitigated Negative Declaration, Negative Declaration, or Notice of Exemption) as CEQA may require. City shall supply to District a copy of the City - approved environmental review document. D. City shall prepare and issue a public works bid package and administer the construction contract for the Joint Project. E. Upon opening of bids, City shall submit results for review and approval by District. District shall have a period of ten (10) calendar days for review of bid results and approval or rejection of the successful bidder. In the event the District rejects the successful bidder, the City shall reject all bids Page 3 of 10 or shall proceed with the work at its sole cost and expense, and without reimbursement from the District. F. City shall obtain all necessary permits for construction of the Joint Project from federal, state and local authorities. G. Provided the District or City do not reject the successful bidder,City shall enter into a contract for construction of the Joint Project in accordance with the approved plans and specifications. That portion of the existing Big Canyon Trunk Sewer that will not be utilized following completion of the Joint Project will he abandoned in place. H. City shall require a one -year warranty on the Joint Project from its construction contractor, which shall be assigned to District upon the City's transfer of the District's portion of the OCSD Trunk Sewer Improvements. Such warranty shall read as follows: "Contractor guarantees for a period of one (1) year from the date of final acceptance of the work by City that the Contractor shall repair or remove and replace any work, together with any other work which may be displaced in so doing, that is found to be defective in workmanship and/or materials without any expense to City or its assigns, ordinary wear and tear excepted. if Contractor fails to comply with this warranty within one (1) week after being notified in writing, City or its assigns are authorized to proceed to have the defects remedied at Contractor's expense. Contractor shall pay the cost and charges thereof immediately on demand. If, in the opinion of City, or its assigns, defective work detected during the guarantee period creates a dangerous condition or requires immediate correction or modification to prevent further loss to City or its assigns or to prevent interruption of City's or its assigns' operations, City or its assigns shall be authorized to repair the condition without prior notice to the Contractor and Contractor shall pay the cost and charges thereof immediately upon demand. Contractor's obligations under this section are in addition to Contractor's other express or implied assurances under this Contract and State law and in no way diminish any other rights that City or its assigns may have against Contractor for faulty materials, equipment, or work. Contractor agrees that this warranty and guarantee shall be freely assignable to the Orange County Sanitation District without any further notice to or consent from Contractor. The Faithful Performance Bond and Labor and Materials Bond required under this Agreement shall continue in full force and effect for the guarantee period." Page 4 of 10 I. City shall promptly inform the District during the course of construction of any proposed change orders to the construction contract. Copies of proposed change orders affecting the District will be provided to the District within five (5) working days of submission to City. All change orders shall be subject to District's approval if, and to the extent, the OCSD Trunk Sewer Improvements are affected thereby. District agrees not to unreasonably withhold its approval to such change orders. J. City shall furnish and deliver to District all Record Drawings of the Joint Project and any additional project - related documents requested by District at no cost to District. Section 4: Easements. A. District shall endeavor to acquire permanent easements from property owners, acceptable to the District, to construct, use, maintain, and replace all portions of the Joint Project encompassing District sewer lines that are located outside the District's existing easement areas ( "District Replacement Easements ") and shall be responsible for all costs, if any, associated therewith. Such District Replacement Easements shall not be less than twenty -five feet (25') in width, unless District, in its sole discretion, elects to accept a lesser width. District shall retain or replace its existing easements for the Big Canyon Trunk Sewer for such segments of the main as District will continue to use as part of the OCSD Trunk Sewer Improvements. District also agrees to make reasonable efforts to assist City in obtaining easements for the realigned portions of City Sewers. B. City shall endeavor to acquire permanent easements acceptable to City, to construct, use, maintain, and replace all portions of the Joint Project encompassing City sewer lines that are located outside the City's existing easement areas ( "City Replacement Easements ") and shall be responsible for all costs, if any, associated therewith. City will make reasonable efforts to assist the District in obtaining District Replacement Easements. City shall retain or replace its existing easements for the City Sewers for such segments of the City Sewers as City will continue to utilize. C. City will not enter into a contract for construction of the Joint Project to commence until the District and City Replacement Easements are obtained and accepted by the District and/or City, as applicable, and the City has obtained permission from the HOAs for the access, construction and storage space required for the Project. The District and City will make reasonable efforts to obtain the District and City Replacement Easements in a timely manner after receipt and /or completion of the City - approved environmental review document. Page 5 of 10 Section 5: District's Specific Obligations. A. District shall reimburse City for all costs and expenses for the design and construction attributable to the OCSD Trunk Sewer Improvements and services related thereto including, but not limited to services and costs for design consulting engineer, outside construction support, such as geotechnical or survey work, the pro rata share of CEQA costs and necessary permits, temporary construction easements, and access agreements. The district shall also pay the City an amount equal to four percent (4 %) of the amount of all of said costs and expenses, which shall be considered the City's "Administrative Fee," which is intended to cover the costs incurred by the City for its intemal costs related to the Joint Project. The District's share of Joint Project costs shall not include costs and services for the design and construction of the City Sewer Improvements, except that the District's share will include costs directly attributable to any extensions of the City Sewers made necessary as a result of the realignment of the OCSD Trunk Sewer Improvements. B. District shall have the sole and absolute; discretion to approve all aspects of the design and construction of the OCSD Trunk Sewer Improvements, as well as construction change orders related thereto. District shall assign a Resident Engineer to oversee change orders, if any. C. District shall provide construction management and inspection services for their portion of the Joint Project. District shall inspect construction of the Joint Project as it deems necessary to assure compliance with the approved Plans and Specifications, including shop drawing review and /or material inspection thereof. District shall promptly notify City if any portion of the work appears not to conform to the Plans and Specifications, and shall work with the City on all items associated with the Joint Project's construction. D. District agrees to accept the District's portion of the OCSD Trunk Sewer Improvements when completed by contractor retained by City in accordance with all requirements of the Plans and Specifications, including any change orders approved by District as provided in Section 3 -I above. The determination of District as to the conformity of the OCSD Trunk Sewer Improvements with the Plans and Specifications shall be made in District's sole and absolute discretion; however, District agrees not to unreasonably withhold its approval as to such conformity. Upon acceptance, District shall own, operate and maintain the District's portion of the OCSD Trunk Sewer Improvements and shall be liable for all damages to persons and property caused by the District's operation and maintenance of the District -owned facilities. Page 6 of 10 Section 6: Final Ownership. The design plans may display sewer alignments that differ from Exhibit A based on engineering analyses performed by a design consultant and either the City or District. The design plans shall clearly annotate and differentiate the OCSD Trunk Sewer Improvements and City Sewer Improvements. Differentiation shall be made down to a manhole and pipe segment basis. Both parties shall agree on this annotation before construction is initiated. This annotation will be used to determine future ownership and maintenance responsibilities. After completion of the Joint Project, the plans will be certified as "Record Drawings" by the City's Director of Public Works and the District's Director of Engineering and shall be used thereafter to indicate ownership and maintenance responsibilities. Section 7: Timing and Amount of Reimbursement. For each payment made by City to its consultants or contractors in connection with the Joint Project, including all progress and final payments, City shall submit an invoice to District setting forth District's share of the payment, accompanied by a copy of any supporting documentation that substantiates the calculation of the District's portion. Within forty-five (45) days following receipt of each invoice, District shall pay the City the full amount of such invoice, plus the Administrative Fee. The District's obligation to reimburse the City hereunder is estimated at a cumulative total of Two Million Dollars ($2,000,000). The City agrees to notify the District at the earliest opportunity if the District's share is expected to exceed Two Million Dollars ($2,000,000) anytime during the . loint Project. Section 8: Indemnification. A. City shall indemnify, defend and hold District, its officers, agents, employees, and consultants harmless from any and all actions, suits, claims, liability or expense for death, injury, loss, or damage to persons or property which may arise or is claimed to have arisen during or out of construction of the Joint Project and prior to the acceptance by the District of the District's portion of the OCSD Trunk Sewer Improvements, as a result of any work or action performed by or on behalf of City, its officers, agents, employees or consultants, save and except in those instances where such expense, liability or claim is solely caused by any act, omission, or negligence of District, its officers, agents, employees or consultants. B. District shall indemnify, defend and hold City, its elected and appointed officials, officers, agents, employees, and consultants, harmless from any and all actions, suits, claims, liability or expense for death, injury, loss or damage to persons or property which may arise or is claimed to have arisen as a result of any act performed by District, its officers, agents, employees or consultants, with respect to the construction of the Joint Project or following District's acceptance of the District's portion of the OCSD Trunk Sewer Improvements, as a result of or in connection with the maintenance and operation of the improvements, save and except in those instances where such expense, liability or claim is solely caused by any act, omission or negligence of City, its officers, agents, employees or consultants. District shall also indemnify, defend and hold City, its Page 7 of 10 elected and appointed officials, officers, agents, employees, and consultants, harmless from any and all actions, suits, claims, liability, cost or expense which may arise or is claimed to have arisen as a result of the District's denial of any change order or part thereof. Section 9: Insurance. City shall require the construction contractor to maintain insurance policies in the amounts stated herein during all times of the construction project. City shall not allow contractor or subcontractor(s) to commence work on the project until such insurance is obtained in accordance with the requirements of this section. City shall require that insurers be admitted carriers and authorized to transact business in the State of California and that insurers have an "A - ", or better, Policyholder's Rating, and a Financial Rating of at least Class VII, or better, in accordance with the most current A.M. Best Rating Guide. City shall include a provision in its contract with contractor that District may require contractor to substitute any insurer whose rating drops below the levels herein specified and that the substitution shall occur within twenty (20) days of written notice to contractor by District or its agent. City shall require contractor to furnish District with original certificates and amendatory endorsements effecting coverage. Said policies and endorsements shall conform to the requirements herein stated. All certificates and endorsements are to be received and approved by the City and the District before work commences. District reserves the right to require complete, certified copies of all required insurance policies, including endorsements, affecting the coverage required by these specifications, at any time. City shall require that all general liability and automobile liability policies be endorsed to name the District and City, their officers, employees, agents, and consultants as additional insureds. City shall require that each insurance policy required herein be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days' written notice. City shall require coverage in at least the following amounts: A. General Liabilitv. $2,000,000.00 per occurrence for bodily injury, personal injury, and property damage and $4,000,000.00 aggregate for bodily injury, personal injury, and property damage. B. Automobile Liabilitv. $2,000,000.00 combined single limit per accident for bodily injury and property damage, including non -owned and hired vehicles. C. Workers' Compensation. Workers' Compensation, in accordance with the Workers' Compensation Act of the State of California for a minimum of $1,000,000.00, or such minimum limits as the required by the State, whichever is greater. Such Workers' Compensation Insurance shall be endorsed to provide for a waiver of subrogation against District. Page 8 of 10 Section 10: Term. This Agreement shall be in full force and effect until the specified obligations of both Parties have been fulfilled or the Agreement is terminated as set forth herein. Section 11: Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, delivered or sent by electronic transmission, and shall be deemed received upon the earlier of: (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) three (3) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by electronic transmission. Any notice, request, demand, direction, or other communication sent by electronic transmission must be confirmed within forty -eight (48) hours by letter mailed or delivered. Notices or other communications shall be addressed as follows: To District: Orange County Sanitation District Post Office Box 8127 Fountain Valley, CA 92728 -8127 Attention: Penny Kyle, Board Secretary Facsimile: (714) 962 -0356 To City: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 9266' ) Attention: Steve Badum, Public Works Director Facsimile: (949) 644 -3020 Section 12: jurisdiction. In the event of a dispute regarding performance or interpretation of this Agreement,, the venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of California for Orange County. . Section 13: No Third Partv Beneficiaries, This Agreement is entered into by and for the District and the City, and nothing herein is intended to establish rights or interests in individuals or entities not a party hereto. Section 14: Force Majeure. Except for the payment of money, neither Party shall be liable for any delays or other non - performance resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualty, Act of God, strike or labor dispute, war or other violence, acts of third parties, or any law, order, or requirement of any governmental agency or authority. Section 15: Governing Law. This Agreement shall be governed by the laws of the State of California. Section 16: Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations and agreements between the Parties pertaining to the subject matter hereof. Page 9 of 10 Section 17: Waiver. A waiver of a breach of the covenants, conditions, or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions, or obligations of this Agreement. Section 18: Modification. Alteration, change, or modification of this Agreement shall be in the form of a written amendment, which shall be signed by each Party. Section 19. 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. Section 20. Agreement Execution and Authorization. Each of the undersigned represents and warrants that they are duly authorized to execute and deliver this Agreement and that such execution is binding upon the entity on whose behalf they are executing this Agreement. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the day and year first above written. APPROVED AS TO FORM: GENERAL COUNSEL a APPROVED AS TO FORM a Aaron C. Harp Assistant City Attorney Attachment: Exhibit A ORANGE COUNTY SANITATION DISTRICT M Blake P. Anderson, General Manager By_ Secretary, Board of Directors CITY OF NEWPORT BEACH IM Steve Bromberg, Mayor ATTEST: City Clerk F:�I:SERS WShwod AGUEMEI.TS. DuL6&tOSCD -Big Cmy=05:4DSSBgC=y0b- Reimhu =1 OCSD. o Page 10 of 10 Pp JJ GE `4 PO 1 J 00.NE 0 LL °S \�l 51-VO 0� %8 .1 1 � 3 JIA v C N rC" Q C u a. LL m y O ro O 6 E C r. U 2:1 U 3 i o o N N 0 N n c Y 'm 1 � Z E c - al 8 ` 0 F- O U D m Z, ci 0 U MACpptTHO Pp JJ GE `4 PO 1 J 00.NE 0 LL °S \�l 51-VO 0� %8 .1 1 0'8 kW A rr X ID ' .... o 5 2 � ¢ � 3 C N Q O 6 E C 3 EO ° o N N 0 N n c Y 'm C E c - al 8 ` 0 F- U D Z, ci 0 U 0 a N , m N N O O a a w O 0'8 kW A rr X ID ' .... o 5 2 � ¢ � 3 PROFESSIONAL SERVICES AGREEMENT WITH SOCAL WALDEN, INC. FOR ENGINEERING DESIGN AND CONSTRUCTION CONSULTING WORK FOR THE BIG CANYON SEWER IMPROVEMENT PROJECT 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 SOCAL WALDEN, INC., a California corporation, whose principal place of business is 2552 White Road, Suite B, Irvine,. California, 92614 ( "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. SOCAL Walden Inc., which does business as Walden & Associates, is a civil engineering, planning and land surveying firm that specializes in preparing sewer construction plans. C. City has entered into an agreement with the Orange County Sanitation District (OCSD) which requires the City to enter into design and construction contracts necessary to realign the trunk sewer line that runs through the Big Canyon Country Club, between Jamboree and MacArthur Boulevards. The new line will be built at a higher elevation than the existing main and portions of the old main that are not realigned will be upgraded or abandoned in place (hereinafter the joint project will be referred to as the "OCSD Trunk Sewer Improvement Project "). D. Pursuant to the City's agreement with OCSD, City will be the lead agency on the OCSD Trunk Sewer Improvement Project, but the plans and specifications will be done in conformance with the OCSD's Standards and Specifications. E. City desires to engage Consultant to provide design and construction support services for the OCSD Trunk Sewer Improvement Project, as described more fully in the Scope of Services attached hereto as Exhibit A ( "Project "). F. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. G. The principal member of Consultant for purposes of Project shall be David L. Bacon, P.E. H. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant -- jointly with the OCSD -- 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 July, 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, the Scope of Work, and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred and Forty- Thousand, Four - Hundred and Fifty Dollars ($140,450.00) 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. 2 4.1 Consultant shall .submit monthly invoices to City describing the work performed the preceding month. Consultant understands that the OCSD is required to reimburse the City for all costs and expenses related to the OCSD Trunk Sewer Improvements depicted on the Trunk and Local Sewer Replacement Map attached hereto as Exhibit "C," which is incorporated by this reference (hereinafter "OCSD Trunk Sewer Improvements "). Consultants 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, a description of any reimbursable expenditures, and shall specifically delineate whether the costs and expenses are related in any way to the OCSD Trunk Sewer Improvements. 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. 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 DAVID L. BACON 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. 3 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. MICHAEL J. SINACORI, 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 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. N 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 Consultants work promptiy, or delay or faulty performance by City, contractors, or governmental agencies. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 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. 5 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 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 prior 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. O 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. D. Coverage 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 Califomia for all of the subcontractors 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 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 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). 7 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. ii. 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 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, G 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 parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization 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. All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and 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 G 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 10 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 bome 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: 11 Attn: Michael J. Sinacori, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3342 Fax: 949- 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: David L. Bacon Walden & Associates 2552 White Road, Suite B Irvine, CA 92614 Phone: 949 - 660 -0110 Fax: 949 - 660 -0418 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. 12 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. 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. 13 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: 0 LaVonne Harkless. City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Mayor for the City of Newport Beach SOCAL WALDEN, INC: By: David L. Bacon President am David W. Couch Chief Financial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Trunk and Local Sewer Replacement Map F:USERSICATSharedlAG\Walden & Associates - BCCC Sewer Realignment PSAADC 14 ALDEN & S S 0 CIATES May 18, 2005 Mr. Mike Sinacori City of Newport Beach 3300 Newport Boulevard Newport Beach CA. 92663 2552 WHITE ROAD, SUITE B • IRVINE, CA 92614 9491660 -0110 FAX: 9491660 -0416 CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS Subject: Civil Engineering Services - Big Canyon Country Club Sewer Realignment Newport Beach, CA Dear Mike: Walden & Associates is pleased to submit this proposal for the civil engineering and land surveying services requested for the above referenced project. This proposal is based on the Preliminary Sewer Realignment plans prepared in October 2004 by this office, between Jamboree Road and MacArthur Boulevard. Generally this work will consist of the design of a new sewer main at a higher elevation than the existing main, and lining a portion of the existing sewer main that is not realigned. It is our understanding that this contract will be issued and administered by the City of Newport Beach but that the plans and specifications will be done in conformance with the Orange County Sanitation District (OCSD) Standards and Specifications. Enclosed you will find the Exhibit A — Scope of Services and Compensation, Exhibit B — Standard Rate Schedule. We appreciate the opportunity to submit this proposal and to be of service to you and the City. If you have any questions please give me a call. Sincerely, IDaddL. Bacon (via a -mail) David L. Bacon DLB /hm cc: Jeff Beardsley, Big Canyon Country Club C:1DDcuments and Settin9sNdbigi.CNB1LDcal Settings\Temporary Internet Rles\OLK210011- 000 -A334 BCCC Sewer Realignment - Rev OS1 B.doc 'Uh Walden & Associates Contract Agreement with City of Newport Beach EXHIBIT "A" SCOPE OF SERVICES and COMPENSATION Consultant agrees to perform the following Scope of Services: May 18, 2005 In performing its services hereunder, Walden & Associates has or will receive information prepared or compiled by others, the accuracy and completeness of which Walden & Associates is entitled to rely upon without independent evaluation or verification. Task 1: Field Joins Survey: Using the 1" = 40' scale topographic mapping previously prepared by this office for this project area, we will field locate and dip the flowlines (to the best of our ability) of the existing manholes that will be joined or modified by new construction. We will also locate any visible hard improvements in the vicinity of new manholes. This does not include non- essential manholes for design purposes of a new trunk line. Horizontal survey control points will be set on an intervisable line that can be used for construction control. Onsite bench marks will be set for vertical control of the construction process. Task 2: Design Development Meetings. Coordination and Project Management: Provide an allowance of approximately 24 hours for research, design development project meetings, project coordination and project management with client, consultants and governing agencies during the process of establishing and approving the Preliminary Engineering Phase of the project. This would include research for existing plans at the City and at Big Canyon Country Club. Information shown from the referenced plans will be noted on the base topo for design purposes of sewer plan and profile sheets. Task 3: Sewer Improvement Plan: Prepare Sewer Improvement Plans for the proposed sewer main from Jamboree Road to MacArthur Boulevard. This includes plan and profile of the main line with connections or relocations for any existing service sewer lines that join the existing sewer main line. Alternatives will be suggested to accommodate maintaining existing flow though the new sewer trunk line during the construction period. Final interim connections or bypass facilities will be the responsibility of the contractor as specified in the contract documents. Task 4: Quantity and Cost Estimates: Prepare a preliminary cost estimate for budgeting purposes based on preliminary plan and profiles. Prepare final quantity estimates to be included in the contract document portion of the specifications for all construction work as shown on the final plans. Our best estimate will be made to include a provision for items that might not be quantifiable within the golf course due to a lack of reference plans. Task 5: Specifications: Prepare Special Provisions for the OCSD boiler plate specifications, modified as necessary, to include project specific requirements. JN: 0011 - 000 -A334 Exhibit "A" Page 2 Client Initials V* Walden & Associates Contract Agreement May 18, 2005 with City of Newport Beach Task 6: Sewer Easements: Prepare new sewer easement legal descriptions and plats for the realigned sewer main based on easement widths negotiated with Big Canyon County Club. We would also include easements and plats for those sewer service lines that connect to the existing sewer main. Upstream limits of these service line easements will be the point of connection. The client is to provide copies of all existing easements to be joined or modified. Task 7: Meetings Coordination and Processinq (T &M Budget): Provide an allowance of approximately 80 hours for proiect meetings and project coordination with client and consultants and processing of plans with governing agencies during the final design period. This allowance is for budget purposes only and will be billed on an hourly basis for work as required. Task 8: Construction Phase Services (T &M Budget Provide an allowance of approximately 284 hours for construction phase services as required for the project. This includes responding to RFI's, providing clarification of the drawing; responding to shop drawings, change orders and field visits as needed. Our best estimate at this time, for field visits to confirm progress, will be twice a week for approximately 4 months. Record drawings will be prepared based on a set of redlined construction plans, supplied by the contractor, at the end of construction. This allowance is for budget purposes only and will be billed on an hourly basis for work as required. This does not include construction staking, inspections, certifications or site supervision of any nature. Task 9: Reimbursables: Generally we will. use the City's account at Mouse Reprographics for reproduction and deliveries. However, for times when this is inconvenient we will provide an allowance for reimbursables to include blueprinting, CAD plotting, reproduction and deliveries. ADDITIONAL SERVICES Services which are not specifically identified herein as services to be performed by Walden & Associates, or its consultants, are considered "Additional Services" for purposes of this Agreement. Client may request that Walden & Associates perform services which are Additional Services. However, Walden & Associates is not obligated to perform such Additional Services unless an amendment to this Agreement has been fully executed setting forth the scope, schedule and fee for such Additional Services. In the event Walden & Associates performs requested Additional Services before receipt of such executed Amendment, Client acknowledges its obligation to pay for such services at Walden & Associates' standard rates, within 30 days of receipt of Walden & Associates' invoice. All Additional Services shall be billed in accordance with the current Standard Fee Schedule. (Exhibit "C ") JN: 0011- 000 -A334 Exhibit "A" Page 3 Client Initials V* Walden & Associates Contract Agreement May 18, 2005 with City of Newport Beach EXCLUSIONS Consulting services relating to any of the following items are specifically excluded from this contract. Soils engineering, testing and reports. Title Reports, recorded documents, etc. Construction staking or certifications. Offsite improvements except as defined herein. Surveying or mapping except as defined herein. Storm Water Pollution Prevention Plan (S.W.P.P.P.) Water Quality Management Plan (W.Q.M.P.) Sewer Study or Hydraulic Analysis. Erosion Control Plan. Access or Traffic Control Plan CLIENT RESPONSIBILITIES Client shall pay all governmental fees and costs. Client shall fumish all title reports, plans, documents and deeds to be used by Consultant as a basis for this project. Client shall furnish all soils testing, reports and documentation required for this project. Client shall pay for all blueprinting, CADD plotting, mylar photo work, sepia reproductions and deliveries required for this project. Client shall furnish plans for all City service mains connected to the O.C.S.D. Trunk Sewer. JN: 0011- 000 -A334 Exhibit "A" Page 4 Client Initials VW Walden & Associates Contract Agreement with City of Newport Beach COMPENSATION Client agrees to compensate Consultant as indicated below: Task Description 1 Field Joins Survey 2 Design Development, Meetings and Project Management (T &M Budget) 3 Sewer Improvement Plan 4 Quantity and Cost Estimates 5 Specifications 6 Sewer Easements (T &M Budget) 7 Meetings, Coordination and Processing (T &M Budget) 8 Construction Phase Services (T &M Budget) 9 Reimbursables Total Compensation May 18, 2005 Fee $ 8.620 5 3,340 $ 61,900 5 3,900 $ 11,560 5 6,390 8 10,800 5 30,940 $ 3,000 $140,450 An allowance for blueprinting, CADD plotting, photo work, reproduction and deliveries is included in our fee as Task 9. Progress billings will be forwarded to the Client on a monthly basis. These billings will include the fees earned for the billing period plus all direct costs advanced by Consultant. The Client shall make every reasonable effort to review invoices within fifteen (15) working days from the date of receipt of the invoices and notify Consultant in writing of any particular item that is alleged to be incorrect. The fees proposed herein shall apply until July 31, 2006. Work shall commence upon receipt of a signed copy of this Contract Agreement. JN: 0011- 000 -A334 Exhibit "A" Page 5 Client Initials VWSSOC & S S 0 CIATE S Big Canyon Country Club Sewer Realignment Labor -Hour Fee Proposal 1140 - 458-008 Rev: May 18, 2005 Rates $160 /hr $135 /hr $105 /hr 580 /hr $50 /hr l $170 !hr C d a) m E Y o , °' m� me Qot Q �@ Total Task Total Task M 0 w N U o o Hours Cost Contract Task a` CL U 1'n 32 60 $ 8.620 $ 8.620 =isle Joins Survey 8 20 Design Development Meetings, I 24 S 3,340 S 3.340 Coordination & Proiect Mangement' 4 20 610 $ 61.900 S 61.900 Sewer Improvement Plan 10 60 I 360 180 36 S 3.900 $ 3,900 Quantity & Cost Estimates 4 32 1 20 116 S 11,550 S 11.560 Specifications 16 80 1 1 58 $ 6.390 $ 6,390 Sewer Easements 10 48 1 Meetings, Coordination & Processing' 80 80 $ 10.600 $ 10.800 Construction Phase Services' 24 100 80 40 40 284 V $ 30,940 $ 30,940 $ 3.000 $ 3.000 Reimbursables 38 298 620 220 60 32 1,268 5140,450 $140,450 Totals * Allowance only, to be Dineo agalnsi on a Tirne gnu m6=1121i C:1Documents an0 seffinos \dbq,CNS \Local Sattirgs \i emporzry Internet Files \OLK2 \1140 -458 -008 Proposal Cost Estimate Rev 05 -18 AM& Walden & Associates Contract Agreement May 18, 2005 with City of Newport Beach EXHIBIT "B" STANDARD FEE SCHEDULE Tne following fees are effective through July 31, 2006. $160.00!nr. for Principal $135.00 /hr_ for Project Manager $120.00 /hr. for Project Engineer 5105.00/hr. for Design Engineer /Land Surveyor $ 95.00 /hr. for Engineer /Land Surveyor $85.00 /hr. for Assistant Engineer /Designer /Land Surveyor $80.00 /hr. for Cad Draftsman $50.00 /hr. for Clerical $170.00 /hr. for 2 -man Survey Crew $205.00 /hr. for 3 -man Survey Crew $250.00 /hr Expert Witness Deposition and Trial Testimony JN: 0011- 000 -A334 Exhibit "A" Page 6 Client Initials Exhibit C To Professional Services Agreement Is The Same As Exhibit A To Reimbursement Agreement With Orange County Sanitation District City of Newport Beach NO. BA- 065 BUDGET AMENDMENT 2004 -05 AMOUNT: S�ao,aso.00 EFFECT ON BUDGETARY FUND BALANCE: X Increase Revenue Estimates Increase in Budgetary Fund Balance �X Increase Expenditure Appropriations AND Decrease in Budgetary Fund Balance Transfer Budget Appropriations X No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations X from additional estimated revenues from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase revenue estimates and expenditure appropriations for the Big Canyon Area Joint Sewer Project. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account REVENUE ESTIMATES (3601) Fund /Division Account 250 4839 EXPENDITURE APPROPRIATIONS (3603) Description Description OC Sanitation District Contribution Signed: Signed: z Signed: Services Director Administrative Apprdval: City Manager City Council Approval: City Clerk Amount Debit Credit $140,450.00 $140,450.00 Date G Es- te Date Description Division Number 7251 Contributions Account Number C5600292 Sewer Main Master Plan Improvement Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: z Signed: Services Director Administrative Apprdval: City Manager City Council Approval: City Clerk Amount Debit Credit $140,450.00 $140,450.00 Date G Es- te Date