HomeMy WebLinkAbout11 - Newport Terrace Landfill Gas CollectionCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 11
July 10, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Lloyd Dalton, PE
949 - 644 -3328 or Idalton @city.newport - beach.ca.us
SUBJECT: NEWPORT TERRACE LANDFILL GAS COLLECTION AND CONTROL
SYSTEM - AWARD CONTRACT NO. 3651
RECOMMENDATIONS:
1. Approve the plans and specifications.
2. Award Contract No. 3651 to Innovative Construction Solutions, Inc., for the Total
Bid Price of $818,800, and authorize the Mayor and the City Clerk to execute the
contract after the Newport Condominium Association and the City have
deposited funds into an escrow account as required by their settlement
agreement.
3. Establish an amount of $80,000 to cover the cost of unforeseen construction
expenses.
4. Approve Amendment No. 1 to SCS Engineer's current agreement to provide for
construction support services in the not -to- exceed amount of $83,162 and
authorize the Mayor and City Clerk to execute the Amendment.
5. Approve an On -Call Professional Services Agreement for Capital Improvement
Program Consultant Services with Gail P. Pickart, P.E. and authorize the Mayor
and City Clerk to execute the Agreement.
DISCUSSION:
On October 13, 2004, the Newport Condominium Association (NCA), an association of
owners of real property within Newport Terrace Tract (see attached vicinity map- Exhibit
A), filed a lawsuit entitled Newport Condominium Assn v. City of Newport Beach in United
States District Court, Central District of California, Orange County Division. The action
arose out of a dispute over who is responsible for post - closure maintenance of the former
Newport Terrace landfill, which was owned and operated by the City from approximately
1953 to 1965. The settlement of the dispute required that the NCA and the City jointly
remediate the landfill gas collection system, with the NCA paying half of all costs actually
incurred in regards to the work, up to a maximum of $500,000, and the City paying the
Newport Terrace Landfill Gas Collection and Control System - Award of Contract No. 3651
July 10, 2007
Page
remainder. Pursuant to the settlement, the NCA and the City are required to deposit
$500,000 into an escrow account.
Subsequently, City staff retained a design consultant to prepare plans and
specifications for the remediation work. At 11:00 a.m, on June 27, 2007, the City Clerk
opened and read the following Total Bid Prices for the project:
Bidder Total Bid Price
Low Innovative Construction Solutions, Inc. $818,800
2 LFG Control Corporation $871,000
3 NRC Environmental Services, Inc. $956,000
The low Total Bid Price is 18% below the Engineer's estimate of $1,000,000 (see
attached bid summary- Exhibit B). The low bidder, Innovative Construction Solutions, Inc.
(ICS), possesses a State of California General Engineering Contractor A License as
specified in the contract documents. ICS has experience in landfill collection systems and
has satisfactorily completed landfill collection projects for other public agencies.
Because of the specialized nature of the work and the financial partnership between the
City and the NCA, City staff and its design consultant determined to prequalify
experienced landfill contracting firms to perform the remediation work. Qualifications
were solicited from four firms, and each of those who submitted bids for the project
were deemed prequalified.
The NCA concurs in awarding Contract No. 3651 to ICS; however, staff recommends
making the award to ICS contingent upon the City and NCA funding the escrow account
as required by the settlement, which should occur during the week of July 9, 2007.
The scope of work for this project includes removing curbs, walkways, asphalt pavement,
irrigation systems, plant materials, turf and other obstructions along the new landfill gas
collection alignment; drilling and installing gas extraction wells, condensate pumps and
sumps; installing a manhole in 19th Street to receive the condensate; trenching and
installing new gas collection mains; remodeling the blower building; removing and
replacing gas treatment equipment in the blower building; installing new electrical service
in the blower building; reconstructing curbs, walkways, asphalt pavement, etc.; replacing
irrigation systems, plant materials and turf; and cleaning up the site.
The Contractor is to complete all work within 100 working days after the Notice to
Proceed is issued, which should occur on or about August 15. Work should then be
substantially completed by January 11, 2008. Liquidated damages will be $1000 per
calendar day.
Plans and specifications were prepared by SCS Engineers of Long Beach, a firm that
specializes in landfill- related projects. SCS was also contracted by the City to assist in
prequalifying firms to bid the remediation work.
Newport Terrace Landfill Gas Collection and Control System - Award of Contract No. 3651
July 10, 2007
Page 3
At staffs request, SCS has proposed to provide construction support for the project,
including meetings; review and approve submittals; respond to requests for information;
prepare change orders; provide construction inspection to assure compliance with their
plans and specifications; prepare as -built drawings; coordinate work with the NCA,
regulatory agencies, etc. Staff feels that SCS's scope of work and their $83,162 not -to-
exceed fee are appropriate for the project, and recommends that their current
professional services agreement be amended (see attached draft Amendment and
Proposal- Exhibit C) to provide for construction support to the City's contract
administrator.
On -Call Professional Services Agreements allow staff to retain specialized services that
are regularly required for various projects at fees that are set for a two year period of time.
Gail P. Pickart, P.E. will supplement Public Works' senior staff, which has been
severely depleted due to the retirement of three senior engineers who would normally
administer such contracts. Mr. Pickart has proposed to provide contract administration
for the project and will oversee and assist SCS in its duties; issue progress payments
and change orders, and manage the project until completion. Mr. Pickart is weii-
qualified to perform these tasks in that he is the City's contract administrator for the
soon- to -be- completed Back Bay Science Center project and he was the City's
Subdivision Engineer during the period of time when Newport Terrace tract was
subdivided and built. Staff feels that Mr. Pickart's scope of work and his $27,600 not -
to- exceed fee are appropriate, and recommends approval of the on -call professional
services agreement (see attached draft Professional Services Agreement and
Proposal- Exhibit D) to provide for contract administration for the Newport Terrace
Landfill project.
ENVIRONMENTAL REVIEW:
The project is Categorically Exempt from provisions of the California Environmental
Quality Act (CEQA) pursuant to Section 15301, Class 1 of the CEQA Implementing
Guidelines. This exemption covers operation, repair, maintenance, minor alteration,
etc., of existing structures, facilities, mechanical equipment, etc., involving no expansion
of use of that existing at the time of the City's determination. A Notice of Determination
has been filed with the Orange County Clerk's office.
FUNDING:
Sufficient funds are available for award, construction contingency, construction support
and contract administration in the following accounts:
Account Description Account Number Amount
Newport Condominium Association's Contribution Escrow Account $500,000
City's Environmental Liability Fund Escrow Account 509,562
Total $1,009,562
Newport Terrace Landfill Gas Collection and Control System - Award of Contract No. 3651
July 10, 2007
Page 4
Proposed uses are as follows:
Vendor
Innovative Construction Solutions,
Innovative Construction Solutions,
SCS Engineers
Gail P. Pickart, PE
Prepared
• • Vton, P.E.
Design
Purpose
Amount
Inc. Construction contract
$818,800
Inc. Contingency
80,000
Construction support
83,162
Contract administration
27.600
Total
$1,009,562
Submitted by:
Y • , 'I
Attachments: Exhibit A - Vicinity Map
Exhibit B - Bid Summary
Exhibit C — Draft Amendment No. 1 and SCS's Proposal
Exhibit D — Draft Amendment No. 6 and Gail P. Pickart's Proposal
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AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH
SCS ENGINEERS FOR CONSULTING SERVICES IN CONNECTION WITH
SELECTION OF CONSTRUCTION CONTRACTOR FOR
NEWPORT TERRACE LANDFILL GAS SYSTEM MODIFICATIONS
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered
into this day of 2007, by and between the CITY OF
NEWPORT BEACH, a municipal corporation ( "City ") and SCS ENGINEERS, an
corporation whose principal place of business is 3900 Kilroy Airport Way, Suite 100,
Long Beach, California, 90808 -6816 ( "Consultant'), is made with reference to the
following:
RECITALS
A. On December 31, 2006, City and Consultant entered into a Professional
Services Agreement, hereinafter referred to as "Agreement," for selection of
qualified construction contractors to bid the Newport Terrace Landfill Gas
System Modifications.
B. City desires to have Consultant provide construction support services in
connection with the construction of the gas system modifications at Newport
Terrace Landfill.
C. City desires to compensate Consultant for additional professional services to be
rendered to City.
D. City and Consultant mutually desire to amend Agreement, hereinafter referred to
as "Amendment No. 1 ", as provided herebelow.
NOW, THEREFORE, the parties hereto agree as follows:
1. Consultant shall provide the services outlined in the July 2, 2007 proposal from
Consultant attached hereto as "Exhibit A" and incorporated in full by this
reference.
2. Total additional compensation for services performed pursuant to this
Amendment No. 2 for all work performed, including all reimbursable items and
subconsultant fees, shall not exceed Eighty Three Thousand One Hundred Sixty
Two Dollars ($83,162) as outlined in Exhibit A.
3. The term of Agreement shall be extended to June 30, 2008.
-4. Except as expressly modified herein, all other provisions, tefrms, and covenants
set forth in Agreement shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on
the date first above written.
APPROVED AS TO FORM:
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
In
LaVonne Harkless,
City Clerk
Attachment: Exhibit A — Proposal
CITY OF NEWPORT BEACH
A Municipal Corporation
By:
Steve Rosansky, Mayor
for the City of Newport Beach
CONSULTANT:
By:
(Corporate Officer)
Title:
Print Name:
By:
(Financial Officer)
Title:
Print Name:
f: \users \pbmshared\agreements \fy 07- 08 \scs- newport terrace Ifg -1.doc
2
Environmental Consultants 3900 Kilroy Airport Way 562 426 -9544
Suite 100 FAX 562 427 -0805
Long Beach, CA 90806 -6816 http: / /www.scsengineers.com
July 2, 2007
File No. 01201221.07
Mr. Aaron C. Harp
Assistant City Attorney
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92658 -8915
Subject: Proposal to Perform Construction Related Services for Newport Terrace Landfill
Gas System Modifications
Dear Mr. Harp:
This letter constitutes a proposal for SCS Engineers (SCS) to perform a variety of construction
related services supporting installation of the modifications to the Newport Terrace LFG System.
As you know, the city recently received construction bids and is moving toward award of a
contract. The city will require a number of services during and immediately after construction in
order to assure that the system is installed properly, with minimum disruptions to the residents.
This proposal describes a scope of work for the construction phase and our estimated cost of
those services.
Note that SCS will be working as an agent of the city. The intent of our work will be to provide
assurance to the city that construction proceeds in conformance to the approved plans and
specifications and applicable permits. SCS understands that at times our staff will be the only
representative of the city at the jobsite. However, SCS will not be directing the contractor. If SCS
observes work that is not in conformance to the plans, specifications and permits, SCS will advise
the contractor and try to have the contractor correct the situation. If the contractor is not
responsive or other problems arise, SCS will advise the city -- any action toward suspending work
or mandating a change in the contractor's mode of operation would have to come directly from
the city to the contractor.
For this reason we understand that the city will identify a contract administrator who will work with
SCS and who will enforce, as appropriate, the city's authority over the contractor.
SCOPE OF WORK
Task 1. Pre- Construction Activities
• Conduct pre- construction meeting at site.
• Coordinate with NCA representatives.
• Review and approve contractor submittals (shop drawings, catalog cuts, etc.).
• Review and approve contractor Health and Safety Plan.
Offices Nationwide
Mr. Aaron Harp - Assistant City Attorney
July 2, 2007
Page 2
Task 2. Construction Inspection (Compliance with Plans and Specifications)
• Full -time inspection of construction of buried elements (wells, buried header — we
assume this will entail 35 working days for a staff professional, nine-hour-days).
• Logging of well boreholes (to be performed by SCS inspector).
• Sampling groundwater, if encountered (4 samples are assumed). This was required by
the Regional Water Quality Control Board during its review of the plans.
• Periodic inspections during construction of above - ground elements, including the blower
facility (assume 6 weeks @ 2 days per week, 6 hours per day).
• Periodic site visits by design engineer (8 assumed, 5 -hours per visit).
• Issue clarifications; review change order requests, if any (assumed 24 hours for Sr. Tech.
Mgr).
Task 3. Final Inspection and Testing
• Observe contractor testing of mechanical components.
• Perform final inspection; issue punch list.
• Issue certification of final construction.
• Assume two full days for Sr. Tech Mgr. and inspector.
Task 4. Prepare As -Built Drawings
SCS will prepare a record set of as -built drawings based on the marked -up set maintained by the
contractor at the site.
Task 5, Project Coordination
This task encompasses overall coordination between the city, the NCA, and the LEA and other
regulatory agencies (SCAQMD, RWQCB). We anticipate there will be a regular need for
reporting and communications between the parties, interaction with residents, updating project
schedules, and general troubleshooting (based on the history of the project).
ESTIMATED COSTS
Our total costs for construction oversight (Tasks 1 through 5) are estimated at $83,162. This is
based on an assumed construction duration of 100 working days (approximately 4.5 months), of
which the SCS inspector will be at the site for 47 days. We have indicated our assumptions for
the labor effort for individual tasks in the narrative above. We have also attached a spreadsheet
with our estimated labor hours and costs for the work.
Mr. Aaron Harp - Assistant City Attorney
July 2, 2007
Page 3
If this proposal is acceptable, we assume the City will process the appropriate contracting
instrument.
We look forward to our continuing relationship with the City of Newport Beach. If you have any
questions about this proposal, please call the undersigned.
Sincerely,
Mark B. Beizer,
Senior Vice President
SCS ENGINEERS
Enclosure
PROPOSAL FEE ESTIMATE -- NEWPORT TERRACE LFG SYSTEM
CONSTRUCTION RELATED SERVICES
Principal
4
0
July 2 200'
0
24
}y{�y
225
6300
Project Director
a
'Ef2S,ONN�i
:'+ 1u = _ ,' _.= 3s"
Sy
Totat ,..(1Hr) Amount($
Principal
4
0
0
0
24
28
225
6300
Project Director
0
0
0
0
0
0
190
0
Sr. Technical Manager
24
64
16
10
0
114
170
19380
Project Manager
0
0
0
0
0
0
150
0
Sr. Pro'. Professional
0
0
0
0
0
0
130
0
Pro'.
Professional
0
0
0
0
0
0
110
0
Staff
Professional
12
387
16
0
0
415
90
37350
Project Adminstrator
0
0
0
0
0
0
80
0
Sr. Engineering Technician
0
16
0
0
0
16
75
1200
Desi ner /Detailer
0
32
0
16
0
48
75
3600
Adminstrative /Secretarial
0
0
0
0
8
8
65
520
Technician
0
0
0
0
0
0
65
0
Subtotals (Hrs)
40
499
32
26
32 629
$68,350
Labor Cost Per Task ($)
6060
49310
4160
2900
5920
0
Subcontractors-
Consultants $ -- architect, E
1600
1000
2400
0
0
5000
1
5000
Laboratory
0
1200
0
0
1200
1
1200
Travel:
Auto Mileage (half-days)
2
0
0
0
0
2
40
80
Auto Mileage >100 mi
0
0
0
0
0
0
0.25
0
Auto Mileage (full days )
0
55
0
0
0
55
80
4400
Repro & Blueprints $
0
0
0
200
0
200
1
200
Laborato $
0
0
0
0
0
0
1
0
E ui ment $
0
2000
0
0
0
2000
1
2000
Misc. Supplies ($
0
0
0
0
0
0
1
0
Total ODC Per Task ($)
Total Cost Per Task ($)
Tasks:
1. Pre - construction
2. Construction Observation
3. Final Inspection
4. As -built drawings
5. Project Coordination
1680 8600 2400 200 0
7992 59200 6920 3130 5920
Total ODC 12880
Admin (15% ODC) 1932
TOTAL ESTIMATE $83,162
PROFESSIONAL SERVICES AGREEMENT WITH
GAIL P. PICKART P.E. FOR ON -CALL
CAPITAL IMPROVEMENT PROJECT CONSULTANT SERVICES
THIS AGREEMENT is made and entered into as of this day of
2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and GAIL P. PICKART, P.E., an individual whose address is 3810 East Coast
Highway, Suite 4, Corona del Mar, California 92625 ( "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 has a need for on -call assistance for project consultant services in
connection with the construction of various capital projects.
C. City desires to engage Consultant to perform on -call engineering services
throughout the City on an as need basis ( "Project").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of Project shall be Gail P.
Pickart.
F. 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 31 day of December, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall provide "On -Calf' consultant services as described in the
Statement of Qualifications attached as Exhibit "A." Upon verbal or written
request from the Project Administrator, Consultant shall provide a letter proposal
for services requested by the City (hereinafter referred to as the "Letter
Proposal "). The Letter Proposal shall include the following:
A. A detailed description of the services to be provided;
B. The position of each person to be assigned to perform the services, and
the name of the individuals to be assigned, if available;
C. The estimated number of hours and cost to complete the services; and
D. The time needed to finish the specific project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
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 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.
E
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Consultant's compensation for services performed ir4-
accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as
approved by the Project Administrator. Any Letter Proposal that sets forth fees in
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by per Council Policy F -14.
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 and /or classification of employee who performed the work, a
brief description of the services performed and /or the specific task in the
letter proposal 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 the Letter Proposal. 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 and the Letter Proposal, 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 Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with the Schedule of Billing Rates set forth in Exhibit B.
193
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 Gail P. Pickart 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.
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. Stephen
G. Badum 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 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. By
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delivery of completed work, Consultant certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
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.
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 performed or
services provided under this Agreement including, without limitation, defects in
workmanship or materials 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
sole 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 onto enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
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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
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 work, 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.
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.
1. Workers' Compensation Coverage. Consultant does not employ
any employees and is exempt from Worker's Compensation
insurance. coverage.
2. 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.
E. Timeiy 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.
F. 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
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shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The 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 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 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.
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 the release of information.
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20. 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 to this Agreement. All such records shall be
clearly identifiable. Consultant shall allow a representative. of City to examine,
audit and make transcripts or copies of such records 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 under this Agreement.
21. WITHHOLDINGS
City may withhold payment 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 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.
22. 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.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. 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
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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 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.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Stephen G. Badum
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Phone: 949 - 644 -3311
Fax: 949 - 644 -3318
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Gail P. Pickart
3810 East Coast Highway, Suite 4
Corona del Mar, CA 92625
Phone: 949 - 872 -9053
Fax: 949 - 640 -1076
26. 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.
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Notwithstanding the above provision, 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 evertt 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 and other information
developed or accumulated in the performance of this Agreement, whether in
draft or final form.
27. 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, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. 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.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. 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.
31. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
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32. 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.
33. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
34. 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.
35. 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: / l &I-- L , (I`ve
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH
A Municipal Corporation
Mayor
for the City of Newport Beach
CONSULTANT:
By: By:
LaVonne Harkless, Gail P. Plckart
City Clerk
Title:
Attachments: Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
flusem \pbMshared \agreements \fy 07 -081on -call semi slpickart-on call.doc
IiK
• Gail P. Pickart, P.E.
Consulting Civil Engineer
3810 East Coast Highway, Suite 4
Corona del Mar, California 92625
(949) 872 -9053
(949) 640 -1076 (Fax)
July 6, 2007
Mr. Steve Badum
City of Newport Beach
Public Works Department
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Subject: On -Call Consulting Civil Engineering Services
Dear Steve:
• I am pleased to submit this proposal to augment the City's Public Works Department staff by
providing on -call professional civil engineering services for specific projects as may be identified
from time -to -time on an as- needed basis. The actual costs for my services will be established when
the scope of a project is determined and fees are computed in accordance with the attached Fee Rate
Schedule.
The type of services that I am prepared to provide fall within the general categories of project
management and construction contract administration. I have been providing those types of services
for the Back Bay Science Center on Shellmaker Island in the Upper Newport Bay Ecological Reserve
since February 2002. Similarly, I provided project management services for the MacArthur
Boulevard Widening (East Coast Highway to Ford Road) and the Arches Interchange Reconstruction
projects from 1994 through 1999. I am a sole practitioner and have more than 40 years of experience
in municipal and land development related civil engineering work.
My career in municipal engineering began in October 1966 with my employment in the City of
Newport Beach Public Works Department. It continued until my resignation in July 1976 when I
accepted a position with a private consulting civil engineering company. After ten years with
consulting civil engineering firms, I started my own company in March 1987 and have been self -
employed ever since. My interests and experience are in the area of project management and I can
handle projects from inception through budgeting, design and construction, culminating in completed
• improvements and facilities.
EXHIBIT A
Exhibit "B"
FEE RATE SCHEDULE
Effective January 1, 2007
Gail P. Pickart, P.E.
3810 East Coast Highway, Suite 4
Corona del Mar, CA 92625
(949) 872 -9053
(949) 640-1076 (Fax)
Professional Services
Title Rate Per Hour
Principal $150.00
Project Manager 115.00
Clerical/Word Processing 45.00
II. Reimbursable Expenses
Travel involving airlines, trains, and overnight lodging will be billed at cost.
2. Reproduction, blueprinting, photocopying, and photographing will be billed at
cost.
III. Outside Services
Invoice costs of services and expenses charged by independent contractors, consultants,
specialists, and professional or technical firms in support of services provided by Gail P.
Pickart, P.E., will be billed at 1.15 times cost.