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HomeMy WebLinkAbout07 - CC-7 - I-405 Improvement Project- Amendments to - 2/16/20211 CITY COUNCIL AGENDA REPORT MEETING DATE: FEBRUARY 16, 2021 ITEM NUMBER: CC-7 SUBJECT: I-405 IMPROVEMENT PROJECT - AMENDMENTS TO THE PROFESSIONAL SERVICES AGREEMENTS FOR CONSTRUCTION SUPPORT AND TRAFFIC ENGINEERING SERVICES DATE: JANUARY 12, 2021 FROM: PUBLIC SERVICES DEPARTMENT/TRANSPORTATION SERVICES DIVISION PRESENTATION BY: RAJA SETHURAMAN, PUBLIC SERVICES DIRECTOR FOR FURTHER INFORMATION CONTACT: JENNIFER ROSALES, TRANSPORTATION SERVICES MANAGER, (714) 754-5343 RECOMMENDATION: Staff recommends that the City Council: 1. Approve proposed Amendment No. 1 (Attachment 1) to the Professional Services Agreement (PSA) with Interwest Consulting Group Inc., 15140 Transistor Lane, Huntington Beach, CA 92649, increasing the maximum compensation by $150,000 for construction support services, on an as-needed basis, for the I-405 Improvement Project, for a total not-to-exceed amount of $350,000; 2. Approve proposed Amendment No. 4 (Attachment 2) to the Professional Services Agreement with AGA Engineers, Inc., 211 E. Imperial Highway, Suite 208, Fullerton, CA 92835, increasing the maximum compensation by $25,000 for traffic engineering services, on an as-needed basis, for the I-405 Improvement Project, for a total not- to-exceed amount of $109,999; and 3. Authorize the City Manager and the City Clerk to execute the amendments and future authorized amendments to the agreements. BACKGROUND: Orange County Transportation Authority (OCTA), in cooperation with the State of California Department of Transportation (Caltrans), is implementing improvements to the I-405 Freeway between the SR-73 and I-605 Freeways. The project includes the addition of one (1) mixed-flow lane and one (1) express lane, and the conversion of the existing High Occupancy Vehicle (HOV) lane to an express lane. 2 In the City of Costa Mesa, major elements of the project include the direct connector ramps between the SR-73 and I-405 Freeways; reconstruction of the Fairview Bridge; realignment of the southbound I-405 onramp from Harbor Boulevard; and sound walls. The significant component of the project in Costa Mesa is the re-design and reconstruction of the Fairview Road/I-405 Interchange and approaches to Fairview Road. There will be multiple traffic detour plans for various phases of the project. Pursuant to Cooperative Agreement No. C-5-3612 between the City and OCTA, as amended, OCTA will implement the project and ensure it meets State and City requirements, and will reimburse the City for all services and costs incurred to complete the project, up to $594,400. The reimbursement to the City includes costs for review and approval of plans, specifications, reports, and oversight of construction inspection services for City facilities, review and acceptance of the transportation management plan, traffic engineering, and police services during design and construction of the project. If the City were to incur additional costs, subsequent amendments could be executed between OCTA and the City to address them. The City of Costa Mesa agreed to provide staff support and retain consultant services as needed to review the project plans and assist during the construction phase. ANALYSIS: Two (2) consultants, Interwest Consulting Group, Inc. and AGA Engineers, Inc. (AGA) are currently providing construction support services and traffic engineering services for the I-405 Improvement Project. Staff anticipates expending the encumbered amounts for both consultants by early February 2021. However, additional construction support and traffic engineering services are needed for the ongoing construction phase of the I-405 Improvement Project. The City will be reimbursed for the expenses incurred during the design and construction phases of the I-405 Improvement Project, up to $594,400 as outlined above. These include design review costs, traffic control and detour plan reviews, participation in project construction coordination meetings, and addressing construction-related issues. ALTERNATIVES CONSIDERED: One alternative would be to not approve the proposed amendments. However, this would result in delays in the delivery of project completion. FISCAL REVIEW: No fiscal impact. This is a reimbursable expense from OCTA. LEGAL REVIEW: The City Attorney’s Office has reviewed and approved this report as to form and prepared the proposed amendments. CITY COUNCIL GOALS & PRIORITIES: Consultant services are needed to implement infrastructure improvements and to improve mobility in the City. Therefore, this item supports City Council Goal 2: Improve our Neighborhoods and Quality of Life, and City Council Goal 5: Improve Mobility and Parking. 3 CONCLUSION: Staff recommends that the City Council: 1. Approve proposed Amendment No. 1 (Attachment 1) to the PSA with Interwest Consulting Group Inc.,15140 Transistor Lane, Huntington Beach, CA 92649, increasing the maximum compensation by $150,000, for construction support services, on an as-needed basis, for the I-405 Improvement Project, for a total not- to-exceed amount of $350,000; 2. Approve proposed Amendment No. 4 (Attachment 2) to the PSA with AGA Engineers, Inc., 211 E. Imperial Highway, Suite 208, Fullerton, CA 92835, increasing the maximum compensation by $25,000 for traffic engineering services, on an as-needed basis, for the I-405 Improvement Project, for a total not-to-exceed amount of $109,999; and 3. Authorize the City Manager and the City Clerk to execute the amendments and future authorized amendments to the agreements. JENNIFER ROSALES RAJA SETHURAMAN Transportation Services Manager Public Services Director _____________________________________ ____________________________________ CAROL MOLINA KIMBERLY HALL BARLOW Finance Director City Attorney ATTACHMENTS: 1. 2. 3. 4. Proposed Amendment No. 1 to Interwest Proposed Amendment No. 4 to AGA Interwest Professional Services Agreement AGA Professional Services Agreement and prior Amendments 1 Interwest Consulting Group Inc. Amendment One I-405 Improvement Project-Construction Support Rev. 05-20 AMENDMENT NUMBER ONE TO PROFESSIONAL SERVICES AGREEMENT WITH INTERWEST CONSULTING GROUP INC. This Amendment Number One (“Amendment”) is made and entered into this 16th day of February, 2021 (“Effective Date”), by and between the CITY OF COSTA MESA, a municipal corporation (“City”), and INTERWEST CONSULTING GROUP INC., a Colorado corporation (“Consultant”). WHEREAS, City and Consultant entered into an agreement on January 15, 2019 for Consultant to provide construction support services in connection with the I-405 Improvement Project (the “Agreement”); and WHEREAS, City desires to increase Consultant’s maximum compensation to Three Hundred Fifty Thousand Dollars ($350,000.00) to enable City to use Consultant for additional construction support services. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Section 2.1 of the Agreement shall be amended to reflect that Consultant’s total compensation shall not exceed Three Hundred Fifty Thousand Dollars ($350,000.00) 2. All terms not defined herein shall have the same meaning and use as set forth in the Agreement. 3. All other terms, conditions, and provisions of the Agreement shall remain in full force and effect. 4. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Counterpart written signatures may be transmitted by facsimile, email or other electronic means and have the same legal effect as if they were original signatures. [Signatures appear on following page.] Attachment 1 2 Interwest Consulting Group Inc. Amendment One I-405 Improvement Project-Construction Support Rev. 05-20 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their respective authorized officers, as of the date first written above. CITY OF COSTA MESA ________________________________ Date: __________________________ City Manager CONSULTANT ________________________________ Date: __________________________ Signature ________________________________ Name and Title ATTEST: ________________________________ City Clerk APPROVED AS TO FORM: ________________________________ Date: __________________________ City Attorney APPROVED AS TO INSURANCE: ________________________________ Date: __________________________ Risk Management APPROVED AS TO CONTENT: ________________________________ Date: __________________________ Project Manager 3 Interwest Consulting Group Inc. Amendment One I-405 Improvement Project-Construction Support Rev. 05-20 DEPARTMENTAL APPROVAL: ________________________________ Date: __________________________ Public Services Director APPROVED AS TO PURCHASING: ________________________________ Date: __________________________ Finance Director 1 AGA Engineers, Inc. Amendment Four I-405 Improvement Project Rev. 05-20 AMENDMENT NUMBER FOUR TO PROFESSIONAL SERVICES AGREEMENT WITH AGA ENGINEERS, INC. This Amendment Number Four (“Amendment”) is made and entered into this 16th day of February, 2021 (“Effective Date”), by and between the CITY OF COSTA MESA, a municipal corporation (“City”), and AGA ENGINEERS, INC., a California corporation (“Consultant”). WHEREAS, City and Albert Grover & Associates, Inc. entered into an agreement on January 3, 2018 for Albert Grover & Associates, Inc. to provide traffic and transportation engineering consulting services in connection with the Interstate 405 (I-405) Improvement Project (the “Agreement”); and WHEREAS, on January 15, 2019, City and Albert Grover & Associates, Inc. amended the Agreement to increase Albert Grover & Associates, Inc.’s maximum compensation; and WHEREAS, on September 3, 2020, City and Consultant amended the Agreement to reflect the assignment of the Agreement from Albert Grover & Associates, Inc. to Consultant; and WHEREAS, Section 4.1 of the Agreement provides for a term of three (3) years, with the option to extend the term for two (2) additional one (1) year periods; and WHEREAS, on January 2, 2021, City and Consultant extended the term of the Agreement for one (1) year, through January 2, 2022; and WHEREAS, City now desires to increase Consultant’s maximum compensation to One Hundred Nine Thousand Nine Hundred Ninety-Nine Dollars ($109,999.00) to enable City to use Consultant for additional traffic and transportation engineering consulting services. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Section 2.1 of the Agreement shall be amended to reflect that Consultant’s total compensation shall not exceed One Hundred Nine Thousand Nine Hundred Ninety-Nine Dollars ($109,999.00). 2. All terms not defined herein shall have the same meaning and use as set forth in the Agreement. 3. All other terms, conditions, and provisions of the Agreement not in conflict with this Amendment shall remain in full force and effect. 4. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Counterpart written signatures may be transmitted by facsimile, email or other electronic means and have the same legal effect as if they were original signatures. [Signatures appear on following page.] Attachment 2 2 AGA Engineers, Inc. Amendment Four I-405 Improvement Project Rev. 05-20 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their respective authorized officers, as of the date first written above. CITY OF COSTA MESA ________________________________ Date: __________________________ City Manager CONSULTANT ________________________________ Date: __________________________ Signature ________________________________ Name and Title ATTEST: ________________________________ City Clerk APPROVED AS TO FORM: ________________________________ Date: __________________________ City Attorney APPROVED AS TO INSURANCE: ________________________________ Date: __________________________ Risk Management APPROVED AS TO CONTENT: ________________________________ Date: __________________________ Project Manager 3 AGA Engineers, Inc. Amendment Four I-405 Improvement Project Rev. 05-20 DEPARTMENTAL APPROVAL: ________________________________ Date: __________________________ Public Services Director APPROVED AS TO PURCHASING: ________________________________ Date: __________________________ Finance Director Attachment 3 , ATTACHMENT 4 CITY OF COSTA MESA PROFESSIONAL SERVICES AGREEMENT WITH ALBERT GROVER & ASSOCIATES, INC. THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into this 3rd day of January, 201 a ("Effective [Date"), by and between the CITY OF COSTA MESA, a municipal corporation ("City"), and ALBERT GROVER & ASSOCIATES, INC., a California corporation ("Consultant"), WITNESSETH., A. WHEREAS, City proposes to utilize the services of Consultant as an independent contractor to provide traffic and transportation engineering consulting services in connection with the interstate 405 (1-405) Improvement Project, as more fuily described herein; and B. WHEREAS, Consultant represents that it has that degree of specialized expertise contemplated within California Government Code section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, City and Consultant desire to contract for the specific services described in Exhibit "AA and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the Provisions of sections 1090-1092 of the California Government Code, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 7.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. Consultant shall provide the professional services described in. Consultant's Proposal, attached hereto as Exhibit "A" and incorporated herein by this reference. 1.2_ Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. 1.3, Performance to Satisfaction of City. Consultant agrees to perform all the work to the complete satisfaction of the City and within the hereinafter specified. Evaluations of the work will be done by the City Manager or his or her designee. if the quality of work is not satisfactory, City in its discretion has the right to: (a) Meet with Consultant to review the quality of the work and resolve the matters of concern; 1 Rev. 01-2017 Albert Grover & Associates, Inc, i ; (b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or (c) Terminate the Agreement as hereinafter set forth. 1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws, Including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant: shall indemnify and hold harmless City from and against ail claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above -mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement. 1.5. Non -Discrimination. in performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender Identity, gender expression, age, sexual orientation, or mliitary or veteran status, except as permitted pursuant to section 12940 of the Government Code, 1.5. Non -Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its awn employees perform services similar to those services contemplated by this Agreement. 1.7. Del atian and Assignment This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Consultant's sale cost and expense. 1.8. Confidentiality. Employees of Consultant in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other Information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City small grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Consultant's total compensation shall not exceed Forty -Nine Thousand Nine Hundred Ninety -Nine Dollars ($49,999.09). For the first year of the term of this Agreement, Consultant shall be paid in accordance with the fee schedule set forth in Exhibit A. Thereafter, Consultant's hourly rates may be Increased on an annual basis based upon an increase in the Consumer Price Index for All Urban Consumers for the Los Angeles — Riverside -- Orange County area.("CPI-U") for the twelve (12) month period preceding the anniversary date 2 Rev. p t-2t7i 7 Albert Grover & Associates, Inc. of this Agreement. Consultant may request an increase In the hourly rates by submitting a written request to City that includes documentation evidencing the increase ("Request for Increase"). Following a Request for Increase, the parties wili enter into an amendment to this Agreement reflecting the adjustment to the hourly rates. No adjustment to the hourly rates will be retroactive. h 2.2. additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in the Consultant's Proposal unless the City or 1 the Project Manager, prior to Consultant perforating the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 1 2.3. Method of Billing. Consultant may submit invoices to the City for approval on a { progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said involce. Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved -and performed pursuant to this - Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. #{ 2.4. Records and Audits. Records of Consultant's services relating to this Agreement i shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times from the Effective Date until three (3) years after termination of this Agreement. 3.0. TIME OF PERFORMANCE 1 3.1, Commencement and Cam letion of Work. The professional services to be performed pursuant to this Ag reement shall commence within five (5) days from the Effective Date of this Agreement. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. 3.2, Excusable Delays. Neither party shall be responsible for delays or lack of Performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party. 4.0. TERM AND TERMINATION 4.1. Term, This Agreement snail commence on the Effective Date and continue for a period of three (3) years, ending on January 2, 2321, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. This Agreement may be extended by two (2) additional one (1) year periods upon mutual written agreement of both parties. 4.2. Notice of Termination, The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant. The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. in the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City. Rev. 01-2017 Albert Grover & Associates, Inc. 4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City's written notice of termination. Compensation for work in progress shalf be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant. 4.4. Documents, In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant. - - 5.0. INSURANCE 5,1. Minimum Scope and limits of Insurance. Consultant shall obtain, maintain, and keep in full force and effect during the life of this Agreement all of the following minimum scope of insurance coverages with an insurance company admitted to do business in California, rated "A," Class X, or better in the most recent Best's Key Insurance Rating Guide, and approved by City: (a) Commercial general liability, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury with a policy limit of not less than One Million Dollars ($1,000,000,00), combined single limits, per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or shall be twice the required occurrence limit. (b) Business automobile liability for owned vehicles, hired, and non -owned vehicles, with a policy limit of not less than One Million Dollars t$1,000,000.00j, combined single limits, per occurrence for bodily injury and property damage. (c) Workers' compensation insurance as required by the State of California. Consultant agrees to waive, and to obtain endorsements from Its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City, its officers, agents, employees, and volunteers arising from work performed by Consultant for the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. (d) Professional errors and omissions ("E&O") liability insurance with policy limits of not less than Ono Million Dollars ($1,000,000.00), combined single limits, per occurrence: and aggregate. Architects' and engineers' coverage shall be endorsed to include contractual liability. if the polloy is written as a "claims made" policy, the retro date shall be prior to the start of the contract 4 Rev.flt-24t7 Albert Grover & Ass oclates, Inc. work. Consultant shall obtain and maintain, said E&C liability insurance during the life of this Agreement and for three years after completion of the work hereunder, 5,2, Endorsements, The commercial general liability insurance policy and business automobile liability policy shall contain or be endorsed to contain the following provisions; (a) Additional insureds: "The City of Costa Mesa and its elected and appointed boards, officers, officials, agents, employees, and volunteers are additional insureds with respect to: liability arising out of activities performed by or on behalf of the Consultant pursuant to its contract with the City; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; automobiles owned, leased., hired, or borrowed by the Consultant." (b) Notice; "Said policy shall not terminate, be suspended, or voided, nor shall it be cancelled, nor the, coverage or limits reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "The Consultant's insurance coverage shall be primary insurance as respects the City of Costa Mesa, its officers, officials, agents, employees, and volunteers. Any other insurance maintained by the City of Costa Mesa shall be excess and not contributing with the insurance provided by this policy." (d) Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of Costa Mesa, its officers, officia[s, agents, employees, and volunteers. (e) The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5.3. Deductible or Self Insured Retention. if any of such policies provide for a deductible or self -insured retention to provide such coverage, the amount of such deductible or self -insured retention shah be approved in advance by City. No policy of insurance issued as to which the City is an additional insured shall contain a provision which requires that no insured except the named insured can satisfy any such deductible or self -insured retention. 5.4, Certificates of insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prier to performing any services under this Agreement. The certificates of insurance shall be attached hereto as Exhibit "B" and incorporated herein by this reference. 5.5. Non -Limiting, Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property. 5 Rev. 07-2017 Af bert Grover & Associates, Inc. f, } 6.0. GENERAL PROVISIONS 6.1, Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provlslon in any other contract document appurtenant hereto, including exhibits to this Agreement. 6.2. Representatives. The City Manager or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement,. except as otherwise expressly provided in this Agreement. Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called - for by this Agreement, except as- otherwise expressly provided in this - Agreement, 6.3, pra'ect Managers, City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement, Consultant shall designate a Project Manager who shall represent it and be its. agent in all consultations with City during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City. 6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered; (a) at the time of delivery if such communication is sent by personal delivery, and (b) 48 hours after deposit in the U.S. Mail as reflected by the official U,S, postmark if such communication is sent through regular United States mail. IF TO CONSULTANT; Albert Grover & Associates, Inc. 211 Imperlai Highway, Suite 208 Fullerton, CA 92835 Tel: (714) 992-2990 Attn: Chalap K. Sadam IF TO CITY: City of Costa Mesa 77 Fair Drive Costa Mesa, CA 92626 Tel: (714) 754-5180 Attn: Jennifer Rosales Courtesy copy to: City of Costa Mesa 77 Fair Drive Costa Mesa, CA 92626 Attn: Finance Dept. j Purchasing 6.5. Drug -Free Workplace Policy.. Consultant shall provide a drug free workplace by complying with all provisions set forth in City's Council Policy 100-5, attached hereto as Exhibit "C" and incorporated herein by reference. Consultant's failure to conform to the requirements set forth in Council Policy 100-5 shall constitute a material breach of this Agreement and small be 6 Rev. 01-2{}17 Albert Graver & Associates, Inc. 11 i cause for immediate termination of this Agreement by City. 6.6. Attome s' Fees. In the event that: litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. 6.7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California. 6.8. Assignment. Consutiant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall — W be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement. 6.9. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, hold free and harmless the City, its elected officials, officers, agents and employees, at Consultant's sole expense, from and against any and all claims, actions, suits or other legal proceedings brought against the City, its elected officials, officers, agents and employees arising out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or stilt asserts as Its basis the negligence, errors, omissions or misconduct of the Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liabllity against the City, its elected officials, officers, agents and employees based upon the work performed by the Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or not the Consultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be. liable. Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnify provisions contained either in the City's specifications or Consultant's Proposal, which shall be of no force and effect. 6,10. Independent Contractor, Consultant is and shall be acting at all times as an independent contractor and. not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the Rev. 41-2017 Albert Grover & Associates, Inc. i J 1 services to be performed hereunder. Consultant shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold: City harmless from any failure of Consultant to comply with the applicable worker's compensation laws, City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this paragraph. 6.11. EWERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurfsdictlon or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any Incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits. 6.1.2. Cooperation, in the event any claim or action is brought against City relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require. 6.13. Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City, Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant, City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attomeys' fees, arising out of or resulting from City's use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant. Consultant shall deliver to City any findings, reports, documents, information, data, in anyform, including but not limited to, computer tapes, discs, files audio tapes or any rather related items as requested by City or its authorized representative, at no additional cost to the City, 6.14. Public Records Act Disclosure, Consultant has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code section 6256 of seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined In the California Government Code section 6254.7, and of which 8 Rev. 01-2017 Albert Grover & Associates, Inc. I Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure Is deemed to be required by law or by order of the Court. 6.15. Conflict of Interest. Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services underthis agreement, including, but not limited to, the Political Reform Act (Government Code sections 81000, et seq.) and Government Code section 1090, During the term of this Agreement, Consultant and its officers, employees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subconsultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute. 6.16. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. in the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. 6.17. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.18. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision small be deemed a part of this Agreement, Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the.document referenced. 6.19, Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 6.20. No Third _Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 6.21. Headings, Paragraphs and subparagraph headings contained in this Agreement are Included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 6.22. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shalt be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring 9 Rev. 01-2017 Albert Grover & Associates, Inc. or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement 6.23. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.24. Waiver, The delay or failure of either party at any time to require performance or i compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance, No waiver of any provision of ' this Agreement shall be effeotive unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought, The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. f 5.25. Severahility. if any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending 9 provision in any other circumstance. Notwithstanding the foregoing, if the value of this - - - Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations. j 6.26. Counterparts, This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, All counterparts shall be construed together and shall constitute one agreement. 6.27. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement. [Signatures appear on following page,] 10 Rev. 01-2017 Albert Graver & Associates, Inc. IN WITNESS WHEREOF. the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CONSULTANT Date: _ ,` . 0 Signature ,K 5Pry p V►.-9 A.9_ ' 33"0,' -745 5- [Marne and Title] Social Security or Taxpayer ID Number CITY OF COSTA MESA mas Hat City Manager ATTEST: m Brenda Green pn° City Clerk APPROVED T FORM: Thomas uarte City Attorney Date: ///MY Date: l 1 APPROVED AS TO INSURANCE: . �a+ ©ate: ! 112-11�r Ruth fNa g Risk Management APPROVED AS TO CONTENT: Date: 110 S Je a osales Project Manager 9 'I Rev. 01-2017 Albert Grover & Associates, Inc. tJ>=PARTMENTAL APPROVAL: mil. Date, Raja tethuraman Public Services Director APPROVED AS T4 PURCHASING: Date: Stacy ©ac rty Finance D ctor 12 Rev. 01-201 T Albert Grover & Associates, Inc. EXHIBIT A CONSULTANT'S PROPOSAL A111333RT G- RA OVER, & �VOCIATES December 19, 2G17 Nis. Jennifer Rosales, P.E., PTGE Transportation Services Manager City of Carta Mesa 77 Fair Dr, 4t+ FE Costa Mesa, Cailfomla 92628 RE: Proposal for Traffic and 'Tranapo:tation Engineering 8ervicas related to tho 1-405 Improvement Project Dear Ms, Rosales: Pursuant to your request, Albert Grover & Assoclatvs (AGA) la pleased to present to you this letter proposal to provide professional traffic and transportation englneering services related to the 14105 Improvement Project. AGA has been providing the City of Costa. Mesa whit traffiG engineering services since the early 199Vs and on - cal as-needrad traffic management centerlsignal system support serv€oes for many years. In addition to these servloes, we hove developed and Implemented multi-corrldor traffic signal coordlna bn timing projects, and also provided updated timings due, to changing traffic volumes and travel patterns. Additionally, we have recently provided Intelligent Transportaiton System evaluation and €ntegratiari support services to the City. This experience has provided AGA with hands-on experience with the City's traffic signal system and a good understanding of traffic pattems throughout the City. Via the many projects successfully completed by AGA in the City, we understand what Is needed to keep the arterial coordination systems operating efflolently throughout the construction of the I-405 Improvement Project. AGA is already very familiar wlth the 1-445 Improvement Widening project, As part of the consulting Project Team for the Major investment Study MIS}, Project Study Report (PSR), and Project ApprovallEnvlronmental Document (PALED) phases of this proposed project, AGA was responsible for preparing the 1•405 PALED Traffic Study, which involved evaluating arterial related Impacts and operational issues. This Included artwlal access; aonflguratlon of freeway Interchanges including determining the appropriate lane geometry and traffic control, vehicle queue storage requlremants; transportation system management solutions, sto,, all to improve arterial mobility. As an extenslon of City staff, the following are some anticipated tasks that AGA can assist the City with; # Meatings (DCTA, City, etc,) • Conduct Fleld Revlews • Review of Trafflc Management Plan (TMP) rr.�rr�l-cQX ��TIQkr CQNSLrz�QQ ENGI URS 211 K huPoe,111Hwy., yin W2M, IUIeHon,.CA 928sti (714) 992.999d FAX (73 4) 992-P-89$ R-MMI: WiuC�a�oer[f3rn�er.wm f Ms. ,Jennifer Rosales, P,lr., PTOE December f9, 2017 Pap 2 i �n Plan Chefs for Tratffo Signal, SignlO & StrIPIng, Trafflc Oontrol, Dolour flans; etc. • Evaluate ptopGaed traftfbtetour and-coWructlon related Slgnalllming Pkns Develop, IrnpiMW and fins turfs Signal Timing Pins Trade System MoNlodng We understfntd'INof the revlow of th'e whtraotoes submiNs will need to be dons within a sWt turoaround time. AAA will aflocata ade4=6 I'eoauM8 to 6esist €he.Oily in respd1ng to the Contractor and 00TA, In a tfinely fashion. AGA stab's mull-disclplfnary qualftations and expariarxes allow fho ALGA project team to provide requlrod suppeit for the anticipated services WNW to the 1405 Improvement Profeot revlow for the City d Costs Mew AKGAwill assign The most.qualffled Individutif to 00mpfete each task esslgned to ors by the City, All tasks assigned to AGA will btu :overseen by Mr, Chafap Sadam, P,�-,, TZ, vice President, wltfi support from David Roseman, - `t Z, Prlhclpai Tremportation Englneer, land Marls Wier, P',�,, 'f Z, PTM Exeoutive Ace President, AON propm� that profssslonel'trans artAItlbil err l�se4rlriff service$ related to the 1405 lmproVement Project be completed on-9 11me and Material �WM writact and be trilled hourly per our latost schedule of h4uriy ra'tos (see attached). For budgetary pqu osei�, We recommend (he City of Goats .Mesa allocate $40,995 far thep s�arvicea, Should you have any quC> MIS Warding tfrls prcpasal,. please oontadt me, AGA loom forwatd to assisting the City on thl%ohrftagh-ig prefect. NspOfully sOmltted, AlbanGrover � Aseociates 64A, Ghatap K, Sadam, P,E, Vice FEW-Wea lbglaf�asaij'tASFnawa� Rv�ciFta�¢�W9fioeaanq��gfatlRw�+ri2sr�gai�4l3f,�6kR �*Skakrft% I Ma, Jonnlfsr Rosales, P,E., PTOE December 19, 2017 Page 3 SCHEDULE OF HQURLY RATES ErF�CTIVE JUL.Y 1, 2014 PsincipalJPrasident $ 275 Vice President $ 250 Director of Project Development $ 250 Prinolpal Transportatbri Englneer $ 225 Senior Transport stlon Englneer $ 204 SenlorDeslgn Engineer/Project DevelcpmeM Managor $ 185 AdvaneW System Integrator $ q80 Senior Associate $ 170 Trall3PoAaflon Engineer/Senlor Project Coordinator $ 105 Design EnglneeSenlor Signal Systems Speolallsvoonstnaelion InspectorlSystern Integrator $ 150 Asaoclate Transportatlon EnglneerlCivil Engineering Associate $ 140 Transportalon Englneering Associate $ 135 Signal Systems Speclzllst $ 135 Slonal Systems TechnlcIsn $ 125 Senior CAD Operator $ 125 Pro]eO CoordlnatoMssoclate Englneer $ 110 CARD operator $ 110 Assistant `f'ratlsporta€ion Er1gineerlAss[stunt Englneor $ go Trafl2e Enumerator, Englneoring Aldo $ 75 Engineering Attie 11 $ 50 C0d114COmTmIsslon Meetings, Hearings, etc. '(BlIl{ng Rate +$50 Surcharge) $ 1X0 Minimum Expert Millen (Billing Rate + W Surcharge) $ UN Minimum Expert Won - Deposil!an/Court (5110ng Rate + $100 Surcharge) $ 1,000 Minjmt m Subconsuitanls will be billed at cost plas 20% Undigons of Usggo, The atrovs ratos am typica* alftilva fora 92•raanth period, but Atli{ malWafns the right to chaligo the b1.+ling roles at arrytlmv for con vonlonoe oireco..q heophig, Therefore, all Wings Wu alvisye ba at tho Uiorr, cwranl'b1111ng pie, This W11 riot affect arty agraed upon total or trot-t"xaeed fees, INVOICES WILL BE 8USMITTED MONTHLY AND SHALL BE DUE AND PAYABLE WITHIN 30 DAYS. FINANOE CHARGES MAY 8E ACORUED DAIl.Y'ON UNPAID 8ALANCES BASED ON A 14,o ANNUAL PERCEHTAOE RATE, AMENDMENT NUMBER ONE TO PROFESSIONAL SERVICES AGREEMENT WITH ALBERT GROVER & ASSOCIATES, INC. This Amendment Number One ('Amendment') is made and entered into this 15th day of January, 2019 ("Effective Date"), by and between the CITY OF COSTA MESA, a municipal corporation ("City"), and ALBERT GRAVER & ASSOCIATES, INC. a California corporation ("Consultant°). WHEREAS, City and Consultant entered into an agreement on January 3, 2018 for Consultant to provide traffic and transportation engineering consulting services in connection with the 1-405 improvement Project (the "Agreement"); and WHEREAS, City requires more traffic and transportation engineering consulting services than initially contemplated, and desires to increase Consultant's maximum compensation accordingly to Eighty -Four Thousand Nine Hundred Ninety -Nine Dollars ($84,999.00). NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Section 2.1 of the Agreement shall be amended to reflect that Consultant's total compensation shall not exceed Eighty -Four Thousand Nine Hundred Ninety -Nine Dollars ($84,999.00). 2. All terms not defined herein shall have the same meaning and use as set forth in the Agreement. 3. All other terms, conditions, and provisions of the Agreement not in conflict with this Amendment shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their respective authorized officers, as of the date first written above. CITY PF COSTA MESA Date: I j Acting City Nfanager CONSULTANT ( 44i�, Date: t Signature VcA �A"t�4 - -- Name and Title ,,,,,_ Rev. 11-16 AWert Grover & Associates, Inc. Amendment One 1-405 Improvement Project APP OVER A5 TO FORM: COAttorney APPROVED AS TO INSURANCE: �or Ris agement APPROVED AS TO CONTENT: Prod ct Manager DEPARTMENTAL. APPROVAL: ?45:;. ile4� Public ervices Director APPROVED AS TO PURCHASING; 4inance or 2 Rev. 11-16 Date: 1I 1 J Date: l�2LI 7 Date: i L7,t // I Date: I j Date. I /�O'/ I q Albert Grover & Associates, Inc. Amendment One 1-405 Improvement Project AMENDMENT NUMBER TWO TO PROFESSIONAL SERVICES AGREEMENT WITH ALBERT GROVER & ASSOCIATES, INC. This Amendment Number Two ("Amendment') Is made and entered Into this 3rd day of September, 2020 {"Effective Date"), by and between the CITY OF COSTA MESA, a municipal corporation ("City"), and AGA ENGINEERS, INC., a Caltforn€a corporation ("Consultant"}. WHEREAS, City and Albert Grover & Associates, Ino, entered into an agreement on January 3, 2018 for Albert Grover & Associates, Inc. to provide traffic and transportation engineering consulting services in connection with the interstate 405 (I-405) improvement Project (the "Agreement"); and WHEREAS, on January 15, 2019, City and Albert Grover & Associates, Inc, amended the Agreement to increase Albert Graver & Associates, Ins.'s maximum compensation; and WHEREAS, on June 18, 2020, Consultant notified City that Consultant had signed an Asset Purchase Agreement to acquire certain assets of Albert Grover & Associates, Inc., effective July 1, 2020, and that the purchase would include the assignment of all rights to the Agreement, subject to the City's approval of the assignment; and WHEREAS, Consultant and Albert Grover & Associates, Inc. entered Into an Assignment and Assumption of Contract dated July 1, 2020, wherein Albert Grover & Associates, Inc. assigned all of its right, title, and interest In, to and under the Agreement to Consultant and Consultant assumed all of Albert Grover & Associates, Inc.'s responsibilities, liabilities, covenants and obligations as set forth In the Agreement and agreed to perform and observe all of Albert Grover & Associates, Ins.'s covenants and obligations contained In the Agreement. The Assignment and Assumption of Contract is attached hereto as Exhibit "A" and Incorporated herein; and WHEREAS, City consented to the assignment of the Agreement, and City and Consultant desire to amend the Agreement to reflect the assignment. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows, 1. Any and all references In the Agreement to "Albert Grover & Associates, Inc." shall be amended to read, `AGA Engineers, Inc." 2. Section 6.4 of the Agreement shall be amended to set forth Consultant's contact information as follows: IF TO CONSULTANT: AGA Engineers, Inc. 211 Imperial Highway, Suite 208 Fullerton, CA 92835 Tel: (714) 992-4592 Attn: Chalap K. Sadarn Rev. 05-20 AGA Engineers, Inc. Amendment Two 1-405 Improvement Project 3, All terms not deflned herein shall have the same meaning and use as set forth in the Agreement. 4, All other terms, conditions, and provisions of the Agreement not in conflict with this Amendment shall remain in full farce and effect. 5. This Amendment may be executed In one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Counterpart written signatures may be transmitted by facsimile, email or other electronic means and have the same legal effect as if they were original signatures. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their respective authorized officers, as of the date first written above. CITY OF COSTA MESA dc' - a"'q' I'L City Manager CONSULTANT Signature Chal2 K. Sadam, President Name and Title APPROVED AS TO FORM: CRY Adorn 2 Rev, Ur20 Date: Date: September 11, 2020 Date: / ! AGA Engineers, Inc. Amendment Two 1-405 Improvement Project APPROVED AS TO INSURANCE: PCX— Risk Manbgefnent APPROVED AS TO CONTENT: Proje cTManager DEPARTMENTAL APPROVAL: Public Services Director APPROVED AS TO PURCHASING: Finance Director 3 Rev. 05-20 Date: -��- Date: " Date: �0— � r 2�- I.-C Date: Ct �1 AGA Engineers, Inc. Amendment Two 1-405 Improvement Project. AMENDMENT NUMBER THREE TO PROFESSIONAL SERVICES AGREEMENT WITH AGA ENGINEERS, INC. This Amendment Number Three ("Amendment") is made and entered into as of the 2nd day of January, 2021 ("Effective Date"), by and between the CITY OF COSTA MESA, a municipal corporation ("City"), and AGA ENGINEERS, INC., a California corporation ("Consultant"). WHEREAS, City and Albert Grover & Associates, Inc. entered into an agreement on January 3, 2018 for Albert Grover & Associates, Inc. to provide traffic and transportation engineering consulting services in connection with the Interstate 405 (1-405) Improvement Project (the "Agreement"); and WHEREAS, on January 15, 2019, City and Albert Grover & Associates, Inc. amended the Agreement to increase Albert Grover & Associates, Inc.'s maximum compensation; and WHEREAS, on September 3, 2020, City and Consultant amended the Agreement to reflect the assignment of the Agreement from Albert Grover & Associates, Inc. to Consultant; and WHEREAS, Section 4.1 of the Agreement provides for a term of three (3) years, with the option to extend the term for two (2) additlonal one (1) year periods; and WHEREAS, City and Consultant desire to extend the term of the Agreement for one (1) year, through January 2, 2022; and WHEREAS, City and Consultant intend and desire that this Amendment be effective retroactive to the Effective Date. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. This Amendment shall be effective retroactive to the Effective Date. 2. The term of the Agreement shall be extended through January 2, 2022. 3. All terms not defined herein shall have the same meaning and use as set forth in the Agreement. 4. All other terms, conditions, and provisions of the Agreement not in conflict with this Amendment shall remain in full force and effect. 5. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Counterpart written signatures may be transmitted by facsimile, email or other electronic means and have the same legal effect as if they were original signatures. [Signatures appear on following page.] AGA Engineers, Inc. Amendment Three Rev. 05-20 I-405 Improvement Project IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their respective authorized officers, as of the date first written above. CITY OF COSTA MESA Date: City Manager CONSULTANT Date: Signature Name and Title ATTEST: City Clerk APPROVED AS TO FORM: Date: City Attorney APPROVED AS TO INSURANCE: Date: Risk Management APPROVED AS TO CONTENT: Date. - Project Manager 2 Rev. 05-20 AGA Engineers, Inc. Amendment Three 1-405 Improvement Project. ❑EPARTMENTAL APPROVAL: Date: Public Services ❑irector APPROVED AS TO PURCHASING: Finance Director 3 Rev. 05-20 Date: AGA Engineers, Inc. Amendment Three 1-405 Improvement Project EXHIBIT A ASSIGNMENT AND ASSUMPTION ❑F CONTRACT ASSIGNMENT AND ASSUMPTION OF CONTRACT T141S ASSIGNMENT AND ASSUMPTION OF CONTRACT (the "Assi&nrnenfj is entered into effective as of July 1, 2020, by AGA Engineers, Inc., a California corporation, ("Boer ), and Albert Grover & Associates, Inc., a California corporation (tile "Seller"). RECITALS A. Seller is a Party to that certain agreement with City of Costa Mesa (City) with regard to the 1-405 Improvement Project dated Sanuary 3, 2018, and any amendments thereto (collectively, the "Contra "). B. Buyer is party to that certain Asset Purchase Agreement dated June 5, 2020 (the "APA'� by and between Buyer and Seller for the purchase of certain assets of Seller. C, Seller desires to assign to Buyer and Buyer desires to acquire all of Seller's interest is and to the Contract, subject to the Owner's consent. FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, it is agreed as Follows: 1. Ass g meet. Subject to the Owner's consent, this Assignment shall be effective as of the time of Closing (as defined in the APA) under the APA (the `Effective Time"}, As of the Effective Time, Seller hereby grants, conveys, and assigns unto Buyer, all of Seller's right, title, and interest in, to and under the Contract, subject however, to the provisions of the Contract and this Assignment. 2. AssumnAM Subject to Owner's consent, effective as of the Effective Tune, Buyer hereby assumes all of Seller's responsibilities, liabilities, covenants and obligations set forth in the Contract, and agrees to perform and observe all of Seller's covenants and obligations contained in the Contract. Notwithstanding the foregoing, the parties hereto agree that Buyer does not assume (and Seiler shall remain exclusively liable for) any liability or obligation of Seller that was incurred, arising under or in connection with the Contract prior to the Effective Time. 3, Seller's Representations and Warranties, Seller hereby represents and warrants to Buyer, which representations and warranties shall survive the execution and delivery of this Assignment and the assignment of the Contract, as follows: A, Contr o . The Contract has not been modified or amended, is in full force and effect and contains the entire agreement between Seller and Owner. S. Ptfaults, There are no defaults by Seller under the Contract, and there are no disputes between Seller and Owner concerning the Contract. C. Asgig=g zt. Seller is in full possession of the Contract as a party thereto and has not previously sold, transferred, hypothecated, encumbered, assigned or subleased all or any portion of Seller's right, title or interest in and to the Contract. D. Dwngr Consent Required. In accordance with Section 1.7 of the Contract, the consent of Owner is required. This effectiveness and enforceability ofthis Agreement is subject to the consent of the Owner. 4. Atauointment. Seller hereby irrevocably appoints Buyer, its successors and assigns, as the attorney and agent of Seller, in Seller's name and stead, to enforce the provisions of the Contract to the extent said rights are assigixed herein, Seller hereby acknowledges that such power of attorney is coupled with an interest and may not be revoked in any manner or for any reason. 5. Binding Effect, This Assignment shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors and assigns. 5. Choice _of Law. This Assignment shall be governed by and construed under the laws of the State of California, without regard to conflicts -of -laws principles that would require the application of any other law. 7. Attomevs' Fees. Should either party institute any legal action or proceeding to enforce the provisions of this Assignment, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with the exercise of its rights and remedies hereunder as well as court oasts and expert witness fees as the court shall determine. 8. Execution of Assignment. This Agreement may be executed in any number of counterparts, using facsimile signatures, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, (CONTINUED ON NEXT PACE) 9. APA Terms Remain. No language, terms, provisions, rights, liabilities, obligations, assumptions or any other terms in this Assignment shall change, alter or amend any terms, provisions, rights, liabilities or obligations as between Seller and Buyer under the APA. If there is a conflict between language or any term, provision, right, liability, obligation or assumption in this Assignment and the APA, as between the Seller and Buyer, the language or the term, provision, right, liability, obligation or assumption in the APA shall take precedence and apply and control. BUYER: AGA ENGINEERS, INC. By- L46�&' Chalap K. Sadam, President SELLER: ALBEGROR & ASSOCIATES, INC. By Mark Miller, President By its signature below, the City hereby consents to this Assignment between Seller and Buyer as noted above: OWNER CITY OF COSTA MESA By._ Tn____� -- Name: V-Fl-3A `-1HO V,4 A 4-^J Title: FU13 L-, L S C-9 V t t-r-5 ixRe-C 10 Yz--