HomeMy WebLinkAbout10 - American with Disabilities Act Transition PlanCITY OF
NEWPORT BEACH
C9C /F00.N�P City CouncH Staff Report
Agenda Item No. 10
July 24, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644 -3311, sbadum(c�newportbeachca.gov
PREPARED BY: Fong Tse, Principal Civil Engineer
APPROVED: (, 6--'LL,
TITLE: Americans with Disabilities Act Transition Plan — Approval of
Amended and Restated Professional Services Agreement with
Disability Access Consultants for Transition Plan Update
ABSTRACT:
Additional field surveys and data compilation work are required to complete the
Americans with Disabilities Act Transition Plan (Plan) Update. The approval of an
amended and restated professional services agreement with Disability Access
Consultants (DAC) is needed to complete the Update.
RECOMMENDATIONS:
1. Approve the Amended and Restated Professional Services Agreement with
Disability Access Consultants of Las Vegas - Nevada for completing the City's
ADA Transition Plan Update for an additional $24,120.00, and raise the total not -
to- exceed contract price to $139,020.00. Authorize the Mayor and the City Clerk
to execute the Amended and Restated Agreement.
2. Approve Budget Amendment No. 13BA-005 transferring $24,120.00 from Account
No. 7161- C2001009 (Sidewalk, Curb, and Gutter Replacement and ADA
Improvements - Community Development Block Grant (CDBG) fund) to Account
No. 7161- C8002030 (ADA Transition Plan) for the needed additional services.
Americans with Disabilities Act Transition Plan — Approval of Amended and Restated Professional Services
Agreement with Disability Access Consultants for Transition Plan Update
July 24, 2012
Page 2
FUNDING REQUIREMENTS:
Upon approval of the budget amendment, sufficient CDBG funds are available for these
additional services.
The proposed use of the transferred fund is as follows:
Vendor Purpose Amount
Disability Access Consultants Transition Plan Update $24,120.00
DISCUSSION:
The federal Americans with Disabilities Act (ADA) was enacted in January 1990. Its
passage mandated the City to develop and maintain a strategy plan as to how different
obstructions identified by a citywide facilities ADA compliance review will be remedied.
Accordingly, the City in the early 1990's developed an ADA Transition Plan and
completed various physical improvements to its facilities and infrastructures through a
number of capital improvement projects to comply with the federal requirements. Since
then, staff has and will continue to examine every capital improvement project to identify
and make ADA improvements to the extent possible.
Along with the many changes that were made over the years to the original 1990 ADA
scope, the United States Department of Justice on September 15, 2010 published in the
Federal Register a set of substantial revised regulations for Titles II and III. These new
Federal requirements along with the other rules last updated by the California State
Architect in November 2011 made the tasks of defining, interpreting, and applying the
often conflicting Federal and State requirements very challenging.
In February 2012 staff entered into a Professional Services Agreement (PSA) with
Disability Access Consultants (DAC) of Las Vegas — Nevada to review the City's
existing Plan and identify the areas that need to be amended in accordance with the
most current Federal and State Rules and Regulations. An amendment to the PSA was
executed in May 2012 to include field surveys as well as City staff training that were not
in the original scope of work.
As an outcome of the training and review of City ADA compliance, staff determined that
the remaining field survey work will be substantially more labor intensive than initially
anticipated. Additionally, the regular work performed by staff will be interrupted for an
extended period of time should in -house staff be used to conduct said field surveys. As
such, staff approached DAC for their availability and cost to complete the remaining
field review work. DAC submitted a proposal for $24,120.00 to perform the remaining
work needed to complete the City Transition Plan's Update in a timely manner. Staff
would like City Council approval to amend DCA's contract and have them complete the
necessary field work.
z
Americans with Disabilities Act Transition Plan — Approval of Amended and Restated Professional Services
Agreement with Disability Access Consultants for Transition Plan Update
July 24, 2012
Page 3
When approved, a summary of DCA's PSA is as follows:
A reement
Scope
Amount
Original
Review Existing ADA Transition Plan
$ 25,000.00
Amendment 1
Survey City Facilities and Train Staff
$ 89,900.00
Amended and
Restated
Survey Select High Pedestrian Traffic Public Rights
Of-Way and Complete Transition Plan Update
$ 24,120.00
Total Contract Value
$139,020.00
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (Architectural and Engineering services is not a project
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations,
Title 14, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Ciihmiffari h%r
Attachments: A. Amended and Restated Professional Services Agreement
B. Budget Amendment
3
AMENDED AND RESTATED
PROFESSIONAL SERVICES AGREEMENT
WITH DISABILITY ACCESS CONSULTANTS, INC. FOR
ADA TRANSITION PLAN AND SURVEY
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of this day of July, 2012 ( "Effective Date ") by and between
the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and
DISABILITY ACCESS CONSULTANTS, INC., a California corporation ( "Consultant "),
whose address is 720 W. Cheyenne Ave., Suite 220, North Las Vegas, NV 89030 and
is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to amend and restate the Professional Services Agreement entered
February 2, 2012 and amended on May 10, 2012 with Consultant.
C. City desires to to engage Consultant to conduct a survey of the City's current
Americans with Disabilities Act ( "ADA ") Transition Plan, conduct an ADA Self -
Evaluation of City programs, services and activities and seek public input for the
ADA Transition Plan ( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
E. The principal member of Consultant for purposes of Project shall be Barbara
Thorpe.
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 February 1, 2012, and shall
terminate on June 30, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Consultant acknowledge that the above Recitals are true and correct
and are hereby incorporated by reference into this Agreement. Consultant shall
diligently perform all the services described in the Scope of Services and Billing
a
Schedule attached hereto as Exhibit A and the Additional Services and Billing Schedule
attached hereto as Exhibit B and incorporated herein by reference ( "Services" or
"Work "). The City may elect to delete certain Services within the Scope of Services at
its sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A and B. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.1.1 Notwithstanding the foregoing, Consultant shall not be responsible
for delays due to causes beyond Consultant's reasonable control. However, in the case
of any such delay in the Services to be provided for the Project, each party hereby
agrees to provide notice within two (2) days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) not later than ten
(10) calendar days after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant reasonable time
extensions for unforeseeable delays that are beyond Consultant's control.
3.3 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and Scope of Services
and Billing Schedule attached hereto as Exhibit A and the Additional Services and
Billing Schedule attached hereto as Exhibit B. Consultant's compensation for all Work
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed One Hundred Thirty Nine Thousand Twenty
Dollars and 001100 ($139,020.00) without prior written authorization from City. No
billing rate changes shall be made during the term of this Agreement without the prior
written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) days after approval of the monthly invoice by City staff.
Disability Access Consultants, Inc. Page 2
43 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit A and B to this Agreement, or specifically approved in
writing in advance by City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which Is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit A and B.
PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Barbara Thorpe to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to the City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. Dave
Web, Deputy Public Works Director, or his designee, shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator or his designee shall represent City in all matters pertaining to the
Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays In Consultant's Work schedule.
Disability Access Consultants, Inc. Page 3
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances,
8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City. By delivery of completed Work, Consultant certifies that
the Work conforms to the requirements of this Agreement; all applicable federal, state
and local laws; and the highest professional standard.
8.3 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents and
employees (collectively, the "Indemnifled 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 breach of the terms and conditions of this Agreement, 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).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence 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
Disability Access Consultants, Inc. Page 4
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on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by the
Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Contractor or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City s designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and progress
of the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
Disability Access Consultants, Inc. Page 5
8
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint-venture or syndicate or cotenancy, which shall result in changing the
control of Consultant. Control means fifty percent (50 %) or more of the voting power, or
twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint -
venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. The City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and the City. Except as specifically authorized
herein, the Services to be provided under this Agreement shall not be otherwise
assigned, transferred, contracted or subcontracted out without the prior written approval
of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
17.2 Documents., including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
Disability Access Consultants, Inc. Page 6
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18. COMPUTER DELIVERABLES
All written documents shall be transmitted to City in formats compatible with
Microsoft Office and /or viewable with Adobe Acrobat.
19, CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
20. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement or alleged infringement of any United States' letters patent, trademark, or
copyright, including costs, contained in Consultant's Documents provided under this
Agreement.
21. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or 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.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result In expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
Disability Access Consultants, Inc. Page 7
10 1
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
25. CONFLICTS OF INTEREST
25.1 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.
25.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation of this
Section.
26. NOTICES
26.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first -
class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Consultant to City shall be addressed to City at:
Attn: Dave Webb, Deputy Public Works Director
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3328
Fax: (949) 644 -3318
26.2 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Barbara Thorpe, President
(Consultant Firm Name]
720 W. Cheyenne Ave., Suite 220
North Las Vegas, NV 89030
Phone: (702) 649 -7411
Fax: (702) 649 -7417
Disability Access Consultants, Inc. Page 8
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27. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of Its final request
for payment. The Consultant and the City expressly agree that in addition to any claims
filing requirements set forth in the Agreement, the Consultant shall be required to file
any claim the Consultant may have against the City in strict conformance with the Tort
Claims Act (Government Code sections 900 et seq.).
28. TERMINATION
28.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
29, STANDARD PROVISIONS
29.1 Compliance with all Laws. Consultant shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
29.2 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
Disability Access Consultants, Inc. Page 9
2
29.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
29.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.6 Amendments, This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
29.7 Severability. If any term or portion of this Agreement is held to be Invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
29.8 Controllina Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29.9 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
29.10 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
29.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Disability Access Consultants, Inc. Page 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTOR EY,'P OFFICE A California municipal corporation
By: / �� ,,. ��; By.
Aaron arp Nancy Gardner
City Attorney Mayor
ATTEST: CONSULTANT: Disability Access
Date: Consultants, Inc., a California corporation
By:
Leilani I. Brown Barbara Thorpe
City Clerk President
Date:
By:
Jennie Grover
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services and Billing Schedule
Exhibit B — Additional Services and Billing Schedule
Exhibit C — Insurance Requirements
A11- 013581 \apps\ cat\ cycom \wpdoos \d02g\p005\00011397.doc
Disability Access Consultants, Inc. Page 11
EXHIBIT A
SCOPE OF SERVICES AND BILLING SCHEDULE
Disability Access Consultants, Inc.
Page A -1
City of Newport Beach
Analvsisof Current Plan, Surveyof Sample Sites for ADA/ itle24Con + otinnceandABASelf- evaluation
Scope of Work
The City can select one or more of the four (4) scopes of work provided below. Each deliverable is priced
separately in the cost section of this proposal. Options 1, 2, 3 and 4 include;
1. Disability Access Consultants, Inc. (DAC) will conduct a review of the current City of Newport
Beach ADA Transition Plan and ADA Self - Evaluation and provide input to the City if the current
plan appears to contain all ofthe required components.
2. DAC proposes to conduct an audit of the accesslblllty surveys of five (5) sites that were previously
inspected by the City of Newport Beach (city) to determine if the required accessibility
components of the Americans with Disabilities Act (ADA) Standards and'Ptle.24 of the California
Building Code were included in the previously conducted City reports. The audit of the five sites
by DAC will be conducted at the site using actual site measurements. It is understood that
accessibility code requirements may have changed since the City conducted the accessibility
inspections. Current findings by DAC will be compared with requirements at the time of the
original inspections In order to prepare a valid sample of the findings and recommendations. By
conducting comprehensive surveys of the five sites, the City will have made progress towards and
updated ADA Transition Plan forfve (5) sites, thus documenting current compliance activities.
3. Comparison of the previous City conducted surveys and the recently completed DAC surveys.
4. DAC will conduct an AOA Self - evaluation of City programs, services and activities and will note any
discriminatory or potentially discriminatory practice;. DAC will also conduct the public Input
process using the flndfngs from the previous site inspections and the site inspections conducted
by DAC. If the previous inspections conducted by the City are deterritlned to be inappropriate for
public comment, DAC tails nottfy, the My contact. The ADA requires opportunities for public input
regarding the ADA plan.
Results and Findings of the Audit of Sites
IP.fhe evaluation of the previous accessibility surveys completed by the City are found to include the
majority of the required noncompliant Items and elements, then the previous surveys will be considered
sufficlent'forinclusion intd,an AAA transition plan for the City of Newport Beach and no further surveys
willte'needed bythe Cty. DAC will issue a statement of compliance'to the City of Newport Beach stating
thatthe previous Inspections Include the requirements.
If the new surveys conducted by DAC reveal that noncompliant items were not identified In the previous
surveys conducted by the Cltyor thatother tequlrerhants-of a Transltlon Plan were not included; then the
City will have the data to determine if additional surveys are needed in order to prepare a valid ADA
Transition Plan as required bV ntle II of the ADA.
Proposal for the City of Newport Beach — ADA Compliance
I
(o
In either case, the new surveys of the five (5) selected sites will provide the City with a comprehensive,
updated Inspection and DACTrak accessibility management software for the five sites.
Site Selection
Rve (5) representative sites will be inspected by DAC and the findings compared with prior accessibility
reports completed by the City. The selection ofthe representative sites for the sample audit will be made
from the list of sixty (60) sites from the list of facilities for the City of Newport Beach that was provided to
DAC. it is recommended that the following type of sites be utilized for the sample to get a representative
sample of different types of facilities. It is recommended that the sites include:
1.
Community center
2.
Library
3.
Park
4.
Fire station
5.
Parking lot
The City can select which Ilbrary, community center, park, fire station and parking lot they would like to
include in the sample audit,
Proposal for the City of Newport Beaoh'-ADACompifahce
{'
proposal for Services (or the City of Newport Beach
ADA Transition Plan
Option
De script ion
Price
Option 1
DAC completes accessibility surveys in phases, prioritizing the facility Inspections
$29,000
for sites that have high public use or high use by Individuals with disabilities. This
option would not include use of any City Staff
Phase 1: High use facilities
1. Police Department -
2. Newport Center Library
3. Mariners Branch Library (Completed by DAC)
4. Corona del Mar Branch Library
S. Balboa Branch Library
6. City Hal( (not included due to relocation)
7. Utilities Department
B. West Newport Community Center
9, Newport ThealerArtsCenter
10, Oasis Senior Center
11, Carroll Beek Community Center
12, Bonita Creek Community Center
13, VinclntlorgensenCommunityCenter
14. Lincoln Athletic Center Gym
15. Community Youth Center (Completed by DAC
Phase 7, Parks and similar areas
$46,500
1. 15" Street Park
2. west Newport Park
$. West Jetty View Park
4. Westcllff Park
S. Spyglass Hill Park
6. San Miguel Park
7. Peninsula Park
$. Old School Park
9. Newport Island Park
10, Lookout Point
u. Lido Park
12. Las Arenas Park
13. Jasmine View Park
14, lrJlne Terrace Park
15. Inspiration Point
16. Harbor View Nature Park
17. Galaxy View Park
18, Eastbluff Park
19, Channel Place Park
20. Buffalo Hills Park -Phase 1
21. Buffalo Hills Park -Phase U
22. Begonla Park
23. Batview Park
24, Bayside Drive Park
25, Cliff Drive Park
2,6. 38u' Street Park
d
Proposal for the Clty:of Newport Beach
)r
Phase 3: Fire Stations p
$8,900
1. Fire Station # 1
2. Fire Station #2
3. Rre Station #3
4. Fire Station 94
5. Fire Station #5
G. Fire Station #B
7. Fire Station # 7 (Completed by DAC)
Phase 4: Remaining City Facilities
$11,500
1. West Newport Storage Facility
2. Marine Department H4
3. Lifeguard Headquarters
4. McFadden Square
S. Doryman's Fish Area
6. Balboa Pier
7. Balboa Pier Parking Lot
8, Balboa Yacht Basin
9. Corona del Mar Parking Lot Booth
10. Junior Lifeguard Office
11. "A" Street Parking Lot
12, "B" Street Parking Lot
Total Cost without Public Rights of Way
$95,900
Phase V: Public Rights of Way (sidewalks, signalized intersections)
$19,000
A cost saving option is for the City of Newport Beach license DACTrak and use Clty
staff to Inspect sldewalks and signalized intersections and other public rights -of-
way that come under the jurisdiction of the City. Following training by DAC, the
City of Newport Beach employees can conduct their own Inspections using the
DACTrak tablet. Costs include a five day training course that utilizes classroom and
on -site application regarding the current ADA Standards, the 2010 Standards, Title
24 of the CBC and related accessibility requirements in addition to the use of the
tablet and licensing of DACTrak for data collection and processing. The cost also
includes the cost of the license to use DACTrak for 3 years. The City would
purchase one or more pc tablets to complete the Inspections, Five sites would be,
inspected by DAC and City staff during the training.
If the City would like DAC to conduct the inspections, a price can be determined
based on the intersections and sidewalks to be inspected.
Proposal for the Clty:of Newport Beach
)r
EXHIBIT B
ADDITIONAL SERVICES AND BILLING SCHEDULE
[Consultant Firm Name] Page B -1
�n I
Exhibit B - Additional Services
and Billing Schedule
Disability Access Consultants (DAC) will provide the following services to the City of Newport Beach to
enhance their compliance with the ADA 2010 Standards, Title 24 of the California Building Code, California
MUTCD and PROWAG:
1. Inspection of 44 miles of sidewalks at d cost of $330 per mile (discounted volume price) for a total
of $14,520. The 44 miles of sidewalks were calculated considering both sides of 22 miles of
streets.
2. Inspection of approximately 48 intersections at a cost of $200 per intersection (includes all four
comers) for a cost of $9,600.
3. inclusion of sidewalk and Intersection Inspection reports to the current City of Newport Beach
DACTrak Accessibility Management software. DACTrak allows the City to manage and update
reports, produce progress reports and produce a variety of other custom reports. (No additional
charge)
The total cost for Items 1, 2, and 3 Is $24,120.
The cost includes all expenses.
Since DACTrak Is a web based Interactive software program, City inspection data is backed up daily and
housed in a secure site. Data collected and reports are the property of the City.
Following the completion of Items 1 -3, the City will have accessibility reports with findings and
recommendations, photographs integrated with each finding and recommendation, estimated cost, code
references and management capabilities to implement the barrier removal /transition plan. Using
DACTrak, the City can easily set priorities. and estimated dates for barrier removal, followed by actual
dates and actual costs_
Results of the study will be incorporated Into the DACTrak accessibility management software and
categories for streets and Intersections will be added to the current City DACTrak program.
Submitted June 13, 2012 and authorized by:
Barbara Thorpe, President
Disability Access Consultants
2243 Feather River Blvd
Oroville, CA 95965
(800) 743 -7067
bthorpe ndac- coro.com
2q
EXHIBIT C
1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1.1 Provision of Insurance. Without limiting Consultant's indemnification of
City, and prior to commencement of Work, Consultant shall obtain, provide and maintain
at its own expense during the term of this Agreement, policies of insurance of the type
and amounts described below and in a form satisfactory to City. Consultant agrees to
provide insurance in accordance with requirements set forth here. If Consultant uses
existing coverage to comply and that coverage does not meet these requirements,
Consultant agrees to amend, supplement or endorse the existing coverage.
1.2 Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders' Rating
of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
1.3 Coveraoe Requirements.
1.3.1 Workers' Compensation Insurance. Consultant shall maintain
Workers' Compensation Insurance, statutory limits, and Employers Liability Insurance
with limits of at least one million dollars ($1,000,000) each accident for bodily injury by
accident and each employee for bodily injury by disease in accordance with the laws of
the State of California, Section 3700 of the Labor Code.
1.11.1 Consultant shall submit to City, along with the certificate
of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
1.3.2 General Liability Insurance. Consultant shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with coverage at
least as broad as provided by Insurance Services Office form CG 00 01, in an amount
not less than one million dollars ($1,000,000) per occurrence, two million dollars
($2,000,000) general aggregate. The policy shall cover liability arising from premises,
operations, products - completed operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope of coverage
for liability assumed under a contract.
1.33 Automobile Liability Insurance. Consultant shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of the Consultant arising out
of or in connection with Work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit each accident.
[Consultant Firm Name) Page C -1
"'7-
1.3.4 Professional Liability (Errors & Omissions) Insurance. Consultant
shall maintain professional liability insurance that covers the Services to be performed
in connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) per claim and in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the effective date of this agreement and Consultant
agrees to maintain continuous coverage through a period no less than three years after
completlon of the services required by this agreement.
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
1.4.1 Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and volunteers or
shall specifically allow Consultant or others providing Insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. Consultant
hereby waives its own right of recovery against City, and shall require similar written
express waivers from each of its subconsultants.
1.4.2 Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, but not including
professional liability, shall provide or be endorsed to provide that City and its officers,
officials, employees, and agents shall be included as insureds under such policies.
1.4.3 Primary and Non Contributory. All liability coverage shall apply on
a primary basis and shall not require contribution from any insurance or self- insurance
maintained by City.
1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30)
days notice of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
1.5 Additional Aqreements Between the Parties. The parties hereby agree to
the following:
1.5.1 Evidence of Insurance. Consultant shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other endorsements
as specified herein for each coverage. Insurance certificates and endorsement must be
approved by City's Risk Manager prior to commencement of performance. Current
certification of insurance shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of all required
insurance policies, at anytime,
1.5.2 CC 's Right to Revise Requirements. The City reserves the right at
any time during the term of the Agreement to change the amounts and types of
insurance required by giving the Consultant sixty (60) days advance written notice of
(Consultant Firm Name] Page C -2
P �,
such change. If such change results in substantial additional cost to the Consultant, the
City and Consultant may renegotiate Consultant's compensation.
1,53 Enforcement of Agreement Provisions. Consultant acknowledges
and agrees that any actual or alleged failure on the part of the City to inform Consultant
of non - compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
1.5.4 Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party or insured to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
1.5.5 Self- insured Retentions. Any self- insured retentions must be
declared to and approved by City. City reserves the right to require that self- insured
retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be
considered to comply with these requirements unless approved by City.
1.5.6 City Remedies for Non Compliance If Consultant or any
subconsultant falls to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to terminate this
agreement, or to suspend Consultant's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option, be
deducted from amounts payable to Consultant or reimbursed by Consultant upon
demand.
1.5.7 Timely Notice of Claims. Consultant shall give City prompt and
timely notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies.
1.5.8 Consultant's Insurance. Consultant shall also procure and
maintain, at its own cost and expense, any additional kinds of insurance, which In its
own judgment may be necessary for its proper protection and prosecution of the Work.
[Consultant Firm Name] Page C -3
j-
City of Newport Beach
BUDGET AMENDMENT
2012 -13
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
Increase Expenditure Appropriations AND
PX Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
NO. BA- 13BA -005
AMOUNT: $24,120.00
Increase in Budgetary Fund Balance
Decrease in Budgetary Fund Balance
PX No effect on Budgetary Fund Balance
To transfer expenditure appropriations from the Sidewalk, Curb Gutter Replacement and ADA Improvements account -
Community Development Block Grant (CDBG) fund to the ADA Transition Plan account for additional services
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Amount
Description Debit
Description
Description
Division Number 7161 Community Development Block Program
Account Number C2001009 Sidewalk/Curb /Gutter & ADA
Division Number 7161 Community Development Block Program
Account Number C8002030 ADA Transition Plan
Division Number
Account Number
Division Number
Account Number
Signed: I/ 6. lz-
I�" �V" Financial Approv : Finance Director
Signed:
Administrativ pproval: City Manac
Signed:
City Council Approval: City Clerk
$24,120.00
Credit
$24,120.00
/.19-/2-
Date
'1 ti L
Date
Date