HomeMy WebLinkAboutItem 2h - On-Call Construction Inspection Services
DATE: July 18, 2017
TO: Honorable Mayor and City Council
FROM: Tom Tait, Public Works Services Director
By: Eddie Chan, P.E., Principal Civil Engineer
SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH KOA CORPORATION
FOR ON-CALL CONSTRUCTION INSPECTION SERVICES IN AN
AMOUNT NOT TO EXCEED $65,000
Recommendation: Approve
SUMMARY
The Public Works Services Department (“PWSD”) is responsible for the planning and
implementation of numerous projects included in the City’s Capital Improvement
Program (“CIP”). Many of these projects require construction inspection services.
Currently the PWSD has a vacant Public Works Inspector position. Although the PWSD
will recruit for this position, and anticipates that this position will be filled by December
2017, an on-call construction inspector is currently needed.
The PWSD recently solicited proposals for professional construction inspection
services. Five proposals were received. Based on the evaluated proposals, it is
recommended that the City Council approve, and authorize and direct the City Manager
to execute, a Professional Services Agreement with KOA Corporation for on-call
construction inspection services in an amount not to exceed $65,000.
BACKGROUND
Many of the projects included in the City’s CIP require construction inspection services.
Construction inspection services are imperative to ensure that projects are being
completed according to specifications and to all relevant codes and regulations. The
City typically utilizes one of their Public Works Inspectors for the inspection of these
projects. Since the Public Works Inspector who performs these inspections recently
retired, the PWSD prepared a request for proposals for on-call construction inspection
services on an as-needed basis. The PWSD intends to design and construct various
Public Works Projects in Fiscal Year 2017-18. The purpose of this contract will be to
Award On-Call Construction Inspection Services PSA
July 18, 2017
Page 2 of 4
supplement City staff resources temporarily for construction inspection services.
Examples of projects where contracted construction inspection services will be required
include pavement rehabilitation, concrete repair, median turf rehabilitation, sewer
rehabilitation, and water valve replacement improvements.
DISCUSSION
A request for proposals (“RFP”) was published in the City’s adjudicated newspaper, and
RFP packages were provided to various firms who provide construction inspection
services. On April 27, 2017, the City Clerk received five proposals. The proposals
were reviewed and ranked. The review committee consisted of two Associate Civil
Engineers, a Senior Engineering Assistant, and a Principal Civil Engineer. Based on a
total score of one hundred points, the review committee established their scores on the
responsiveness to the RFP and evaluated the proposals on experience, qualifications,
understanding of the needs of the City, ability to meet schedule, quality of the proposal,
and cost. The consultants were ranked as follows:
Inspection Final Inspection
Fee Fee After
Firm Name Ranking Proposed Negotiation
$124/Hour $115/Hour
KOA Corporation 1
$190/Hour $131/Hour
Caltrop Corporation
2
$125/Hour
SA Associates
3
$ 95/Hour
Onward Engineering
4
$100/Hour
Converse Consultants
5
After careful review and consideration, it was determined that KOA Corporation is the
best qualified firm to perform this service. KOA Corporation has demonstrated specific
experience in providing similar services to other agencies, such as the Cities of Rancho
Palos Verdes, Monterey Park, Anaheim and Long Beach. Although Onward
Engineering and Converse Consultants proposed hourly cost is less than KOA
Corporation, staff found that Onward Engineering and Converse Consultants did not
best meet the needs of the City. Onward Engineering is a smaller company that
demonstrated less construction experience and less overall ability to meet City’s
breadth of demands than KOA Corporation. Converse Consultants is a company that
has significant experience and focus in the geotechnical side of inspection but less
comparable experience in the full range of construction inspection requirements. In
short, KOA Corporation is able to provide a broader scope of construction inspection
services. Furthermore, KOA Corporation was open to negotiation related to their costs
and were able to reduce their inspection cost/hour to $115 without affecting the scope of
services for inspection. It is recommended that the City Council approve the attached
proposed Professional Services Agreement with KOA Corporation.
Award On-Call Construction Inspection Services PSA
July 18, 2017
Page 3 of 4
FISCAL IMPACT
The City has budgeted approximately $12 Million for the Fiscal Year 2017-18 Capital
Improvement Program. Funding for construction inspection services is built into the
budgets for relevant projects from their associated funding sources when inspection
services are needed. As a result, there are sufficient funds in the existing Capital
Improvement Program for these services. All work performed will be on a time and
material basis and the contractor will only be paid for work performed up to a not to
exceed amount of $65,000.
RECOMMENDATION
It is recommended that the City Council approve, and authorize and direct the City
Manager to execute, a Professional Services Agreement with KOA Corporation for on-
call construction inspection services in an amount not to exceed $65,000.
Attachment: Proposed Professional Services Agreement
CITY OF ARCADIA
PROFESSIONAL SERVICES AGREEMENT REGARDING
ON-CALL CONSTRUCTION SERVICES (AS-NEEDED BASIS)
1. P ARTIES AND D ATE.
This Agreement is made and entered into this ____ day of ______________,
2017 by and between the City of Arcadia, a charter city organized under the
Constitution and laws of the State of California with its principal place of business at 240
West Huntington Drive, Arcadia, California 91066-6021 ("City") and KOA Corporation,
a California Corporation, with its principal place of business at 1100 Corporate Center
Drive, Suite 201, Monterey Park, CA 91754 ("Consultant"). City and Consultant are
sometimes individually referred to as “Party” and collectively as “Parties.”
2. R ECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the City on the terms and conditions set forth
in this Agreement. Consultant represents that it is experienced in providing
construction inspection services to public clients, is licensed in the State of California,
and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the On-Call
Construction Inspection Services (As-Needed Bases) project (“Project”) as set forth
in this Agreement.
3. T ERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to
furnish to the City all labor, materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately supply the professional construction
inspection consulting services necessary for the Project ("Services"). The Services
are more particularly described in Exhibit "A" attached hereto and incorporated herein
by reference. All Services shall be subject to, and performed in accordance with, this
Agreement, the exhibits attached hereto and incorporated herein by reference, and all
applicable local, state and federal laws, rules and regulations.
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3.1.2 Term. The term of this Agreement shall be from one year from the
date of execution, unless earlier terminated as provided herein. Consultant shall
complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor.
The Services shall be performed by Consultant or under its supervision. Consultant will
determine the means, methods and details of performing the Services subject to the
requirements of this Agreement. City retains Consultant on an independent contractor
basis and not as an employee. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall also not be
employees of City and shall at all times be under Consultant's exclusive direction and
control. Consultant shall pay all wages, salaries, and other amounts due such
personnel in connection with their performance of Services under this Agreement and
as required by law. Consultant shall be responsible for all reports and obligations
respecting such additional personnel, including, but not limited to: social security taxes,
income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference.
Consultant represents that it has the professional and technical personnel required to
perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, City shall respond to Consultant's
submittals in a timely manner. Upon request of City, Consultant shall provide a more
detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the prior written approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City
that certain key personnel will perform and coordinate the Services under this
Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon prior written approval
of City. In the event that City and Consultant cannot agree as to the substitution of key
personnel, City shall be entitled to terminate this Agreement for cause. As discussed
below, any personnel who fail or refuse to perform the Services in a manner acceptable
to the City, or who are determined by the City to be uncooperative, incompetent, a
threat to the adequate or timely completion of the Project or a threat to the safety of
persons or property, shall be promptly removed from the Project by the Consultant at
the request of the City. The key personnel for performance of this Agreement are as
follows: Alan Braatvedt, Vice President of Construction Management Division.
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3.2.5 City’s Representative. The City hereby designates Tom Tait,
Public Works Services Director, or his or her designee, to act as its representative for
the performance of this Agreement (“City’s Representative”). City’s Representative
shall have the power to act on behalf of the City for all purposes under this Contract.
Consultant shall not accept direction or orders from any person other than the City’s
Representative or his or her designee.
3.2.6 Consultant’s Representative. Consultant hereby designates Alan
Braatvedt, or his or her designee, to act as its representative for the performance of
this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have
full authority to represent and act on behalf of the Consultant for all purposes under this
Agreement. The Consultant’s Representative shall supervise and direct the Services,
using his best skill and attention, and shall be responsible for all means, methods,
techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with
City staff in the performance of Services and shall be available to City's staff,
consultants and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall
perform all Services under this Agreement in a skillful and competent manner,
consistent with the standards generally recognized as being employed by professionals
in the same discipline in the State of California. Consultant represents and maintains
that it is skilled in the professional calling necessary to perform the Services. Finally,
Consultant represents that it, its employees and subcontractors have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
perform the Services, including a City Business License, and that such licenses and
approvals shall be maintained throughout the term of this Agreement. As provided for in
the indemnification provisions of this Agreement, Consultant shall perform, at its own
cost and expense and without reimbursement from the City, any services necessary to
correct errors or omissions which are caused by the Consultant’s failure to comply with
the standard of care provided for herein. Any employee of the Consultant or its sub-
consultants who is determined by the City to be uncooperative, incompetent, a threat to
the adequate or timely completion of the Project, a threat to the safety of persons or
property, or any employee who fails or refuses to perform the Services in a manner
acceptable to the City, shall be promptly removed from the Project by the Consultant
and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of
and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and
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without giving written notice to the City, Consultant shall be solely responsible for all
costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials,
directors, officers, and employees free and harmless, pursuant to the indemnification
provisions of this Agreement, from any claim or liability arising out of any failure or
alleged failure to comply with such laws, rules or regulations.
3.2.9.1 Immigration Reform and Control Act. Consultant
acknowledges that Consultant, and all subcontractors hired by Consultant to perform
services under this Agreement, are aware of and understand the Immigration Reform
and Control Act ("IRCA"). Consultant is and shall remain in compliance with the IRCA
and shall ensure that any subcontractors hired by Consultant to perform services under
this Agreement are in compliance with the IRCA. In addition, Consultant agrees to
indemnify, defend and hold harmless the City, its directors, officials, officers and
employees, from any liability, damages or causes of action arising out of or relating to
any claims that Consultant's employees, or the employees of any subcontractor hired by
Consultant, are not authorized to work in the United States for Consultant or its
subcontractor and/or any other claims based upon alleged IRCA violations committed
by Consultant or Consultant's subcontractor(s).
3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not
commence Work under this Agreement until it has provided evidence satisfactory to the
City that it has secured all insurance required under this section. In addition, Consultant
shall not allow any subcontractor to commence work on any subcontract until it has
provided evidence satisfactory to the City that the subcontractor has secured all
insurance required under this section; provided, however, that in lieu thereof, the
Consultant may provide evidence to the City that all subcontractors are additional
insureds under the Consultant’s policies of insurance.
3.2.10.2 Minimum Requirements. Consultant shall, at its
expense, procure and maintain for the duration of the Agreement insurance against
claims for injuries to persons or damages to property which may arise from or in
connection with the performance of the Agreement by the Consultant, its agents,
representatives, employees, subcontractors and volunteers. Consultant shall also
name and obtain insurer’s consent to naming City, its directors, officials, officers, and
employees as an additional insured with proof of certificate of insurance that they are an
additional insured. Such insurance shall meet at least the following minimum levels of
coverage:
(A) Minimum Scope of Insurance. Coverage shall be
when commercially available (occurrence based) at least as broad as the latest version
of the following: (1) General Liability: Insurance Services Office Commercial General
Liability coverage for premises and operations, contractual liability, personal injury,
bodily injury, independent contractors, broadform property damage, explosion, collapse,
and underground, products and completed operations; (2) Automobile Liability:
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Insurance Services Office Business Auto coverage for any auto owned, leased, hired,
and borrowed by Consultant or for which Consultant is responsible; and (3) Workers’
Compensation and Employer’s Liability: Workers’ Compensation insurance as required
by the State of California and Employer’s Liability Insurance.
The City, its directors, officials, officers, and employees shall be listed as additional
insured. Any deductibles or self-insured retentions must be declared to and approved
by City and conform to the requirements provided in Section 3.2.10.6 herein.
(B) Minimum Limits of Insurance. Consultant shall
maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property damage, with an aggregate
limit of $1,000,000. If Commercial General Liability Insurance or other form with general
aggregate limit is used, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; (2) Automobile Liability: $1,000,000 combined single limit per accident
for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or
disease.
3.2.10.3 Professional Liability. Consultant shall procure and
maintain, and require its sub-consultants to procure and maintain, for a period of three
(3) years following completion of the Project, errors and omissions liability insurance
appropriate to their profession. Such insurance shall be in an amount not less than
$1,000,000 per claim, and shall be endorsed to include contractual liability.
3.2.10.4 Insurance Endorsements. The insurance policies
shall contain the following provisions, or Consultant shall provide endorsements on
forms supplied or approved by the City to add the following provisions to the insurance
policies:
(A) General Liability. The general liability policy shall be
endorsed to state that: (1) the City, its directors, officials, officers, and employees shall
be covered as additional insured with respect to liability arising out of Services
operations and for completed operations performed by or on behalf of the Consultant,
including materials, parts or equipment furnished in connection with such work; and (2)
the insurance coverage shall be primary insurance as respects the City, its directors,
officials, officers, and employees, or if excess, shall stand in an unbroken chain of
coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or
self-insurance maintained by the City, its directors, officials, officers, employees and
volunteers shall be excess of the Consultant’s insurance and shall not be called upon to
contribute with it in any way.
(B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the City, its directors, officials, officers, and
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employees shall be covered as additional insureds with respect to the ownership,
operation, maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by the Consultant or for which the Consultant is responsible; and (2) the
insurance coverage shall be primary insurance as respects the City, its directors,
officials, officers, and employees, or if excess, shall stand in an unbroken chain of
coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or
self-insurance maintained by the City, its directors, officials, officers, and employees
shall be excess of the Consultant’s insurance and shall not be called upon to contribute
with it in any way.
(C) Workers’ Compensation and Employers Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, and employees for losses paid under the terms of the
insurance policy which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be, reduced or
canceled except after thirty (30) days prior written notice by certified mail, return receipt
requested of cancellation, of intended non-renewal or endorsement reduction in limit or
scope of coverage; provided, however, that in the event of cancellation due solely to
non-payment of premium, ten (10) days notice of cancellation for non-payment of
premium may instead be given to the City.; and (B) any failure to comply with reporting
or other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, and employees.
3.2.10.5 Separation of Insureds; No Special Limitations. All
insurance required by this Section shall contain standard separation of insureds
provisions. In addition, such insurance shall not contain any special limitations on the
scope of protection afforded to the City, its directors, officials, officers, and employees.
3.2.10.6 Deductibles and Self-Insurance Retentions. Any
deductibles or self-insured retentions must be declared to and approved by the City.
Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self-insured retentions as respects the City, its
directors, officials, officers, and employees; or (2) the Consultant shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
3.2.10.7 Acceptability of Insurers. Insurance is to be placed
with insurers with a current A.M. Best’s rating no less than A:VII, admitted or approved
to do business in California, and satisfactory to the City.
3.2.10.8 Verification of Coverage. Consultant shall furnish City
with complete and accurate copies of current certificates of insurance and
endorsements effecting coverage required by this Agreement on forms satisfactory to
the City. The certificates and endorsements for each insurance policy shall be signed
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by a person authorized by that insurer to bind coverage on its behalf, and shall be on
forms provided by the City if requested. Copies of all certificates and endorsements
must be received and approved by the City before work commences. The City reserves
the right to require complete, certified copies of all required insurance policies, at any
time.
3.2.10.9 Safety. Consultant shall execute and maintain its
work so as to avoid injury or damage to any person or property. In carrying out its
Services, the Consultant shall at all times be in compliance with all applicable local,
state and federal laws, rules and regulations, and shall exercise all necessary
precautions for the safety of employees appropriate to the nature of the work and the
conditions under which the work is to be performed. Safety precautions as applicable
shall include, but shall not be limited to: (A) adequate life protection and life saving
equipment and procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang
planks, confined space procedures, trenching and shoring, equipment and other safety
devices, equipment and wearing apparel as are necessary or lawfully required to
prevent accidents or injuries; and (C) adequate facilities for the proper inspection and
maintenance of all safety measures.
3.2.10.10 Material Breach. Lack of insurance does not negate
Consultant’s obligations under this Agreement. Maintenance of proper insurance
coverage is a material element of this Agreement and failure to maintain or renew
coverage or to provide evidence of renewal may be treated by the City as a material
breach of the Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
reimbursements which receive the City’s prior written authorization, for all Services
rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and
incorporated herein by reference. The total compensation shall not exceed SIXTY-FIVE
THOUSAND DOLLARS AND NO CENTS ($65,000.00) without written approval of the
City Manager. Extra Work may be authorized, as described below, and if authorized,
will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a
monthly itemized statement which indicates work completed and hours of Services
rendered by Consultant. The statement shall describe the amount of Services and
supplies provided since the initial commencement date, or since the start of the
subsequent billing periods, as appropriate, through the date of the statement. City
shall, within forty-five (45) days of receiving such statement, review the statement and
pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed
for any expenses unless prior written authorization is obtained from the City.
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3.3.4 Extra Work. At any time during the term of this Agreement, City
may request that Consultant perform Extra Work. As used herein, "Extra Work" means
any work which is determined by City to be necessary for the proper completion of the
Project, but which the parties did not reasonably anticipate would be necessary at the
execution of this Agreement. Consultant shall not perform, nor be compensated for,
Extra Work without prior written authorization from City's Representative.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Consultant shall maintain complete
and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Consultant shall allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of such records and any other documents created pursuant to this
Agreement. Consultant shall allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice
to Consultant, terminate the whole or any part of this Agreement at any time and without
cause by giving written notice to Consultant of such termination, and specifying the
effective date thereof, at least seven (7) days before the effective date of such
termination. Upon termination, Consultant shall be compensated only for those services
which have been adequately rendered to City, and Consultant shall be entitled to no
further compensation. Consultant may not terminate this Agreement except for cause.
A termination without cause by City shall not act as or be deemed a waiver of any
potential known or unknown City claims associated with Consultant’s performance prior
to the date of termination.
3.5.1.2 Effect of Termination. If this Agreement is terminated
as provided herein, City may require Consultant to provide all finished or unfinished
Documents and Data and other information of any kind prepared by Consultant in
connection with the performance of Services under this Agreement. Consultant shall be
required to provide such document and other information within fifteen (15) days of the
request.
3.5.1.3 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms
and in such manner as it may determine appropriate, services similar to those
terminated.
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3.5.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
Consultant:
KOA Corporation
1100 Corporate Center Drive, Suite 201
Monterey Park, CA 91754
Attn: Alan Braatvedt
City:
City of Arcadia
240 West Huntington drive
Arcadia, CA 91007
Attn: Eddie Chan, Principal Civil Engineer
Such notice shall be deemed made when personally delivered or when mailed, forty-
eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property.
This Agreement creates a non-exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual
property embodied in plans, specifications, studies, drawings, estimates, and other
documents or works of authorship fixed in any tangible medium of expression, including
but not limited to, physical drawings or data magnetically or otherwise recorded on
computer diskettes, which are prepared or caused to be prepared by Consultant under
this Agreement (“Documents & Data”). Consultant shall require all subcontractors to
agree in writing that City is granted a non-exclusive and perpetual license for any
Documents & Data the subcontractor prepares under this Agreement. Consultant
represents and warrants that Consultant has the legal right to license any and all
Documents & Data. Consultant makes no such representation and warranty in regard
to Documents & Data which were prepared by design professionals other than
Consultant or provided to Consultant by the City. City shall not be limited in any way in
its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City’s sole risk.
3.5.3.2 Confidentiality. Except as otherwise required by
California law, all ideas, memoranda, specifications, plans, procedures, drawings,
descriptions, computer program data, input record data, written information, and other
Documents and Data either created by or provided to Consultant in connection with the
performance of this Agreement shall be held confidential by Consultant. Such materials
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shall not, without the prior written consent of City, be used by Consultant for any
purposes other than the performance of the Services. Nor shall such materials be
disclosed to any person or entity not connected with the performance of the Services or
the Project. Nothing furnished to Consultant which is otherwise known to Consultant or
is generally known, or has become known, to the related industry shall be deemed
confidential. Consultant shall not use City's name or insignia, photographs of the
Project, or any publicity pertaining to the Services or the Project in any magazine, trade
paper, newspaper, television or radio production or other similar medium without the
prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with
one another, and shall take any additional acts or sign any additional documents as
may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Indemnification.
3.5.5.1 To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold the City, its officials, officers, and employees free and
harmless from any and all claims, demands, causes of action, costs, expenses, liability,
loss, damage or injury, in law or equity, to property or persons, including wrongful death,
in any manner arising out of or incident to any alleged acts, omissions or willful
misconduct of Consultant, its officials, officers, employees, agents, consultants and
contractors arising out of or in connection with the performance of the Services, the
Project or this Agreement, including without limitation the payment of all consequential
damages and attorney’s fees and other related costs and expenses. Notwithstanding
the foregoing, to the extent Consultant’s Services are subject to Civil Code Section
2782.8, the above indemnity shall be limited, to the extent required by Civil Code
Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the Consultant. Consultant shall defend with
Legal Counsel of City’s choosing, at Consultant’s own cost, expense and risk, any and
all such aforesaid suits, actions or other legal proceedings of every kind that may be
brought or instituted against City, its directors, officials, officers, and employees.
Consultant shall pay and satisfy any judgment, award or decree that may be rendered
against City or its directors, officials, officers, and employees, in any such suit, action or
other legal proceeding arising from Consultant’s performance of the Services, the
Project or this Agreement; except to the extent that liability is caused by the active
negligence or willful misconduct by the City or its directors, officials, officers, and
employees. Consultant shall reimburse City and its directors, officials, officers, and
employees, for any and all legal expenses and costs incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. Consultant’s
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by
the City, its directors, officials, officers, and employees, and shall take effect
immediately upon execution of this Agreement.
3.5.5.2 The duty to defend and to hold harmless, as set forth
above, shall include the duty to defend as established by Section 2778 of the California
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Civil Code, and the duty to defend shall arise upon the making of any claim or demand
against the City, its respective officials, officers, agents, employees and representatives,
notwithstanding that no adjudication of the underlying facts has occurred, and whether
or not Consultant has been named in the claim or lawsuit.
3.5.6 Entire Agreement. This Agreement contains the entire Agreement
of the Parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Agreement may only be modified by
a writing signed by both Parties.
3.5.7 Attorney’s Fees. If either party commences an action against the
other party, either legal, administrative or otherwise, arising out of or in connection with
this Agreement, the prevailing party in such litigation shall be entitled to have and
recover from the losing party reasonable attorneys’ fees and all other costs of such
action.
3.5.8 Governing Law. This Agreement shall be governed by the laws of
the State of California. Venue shall be in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.5.10 City's Right to Employ Other Consultants. City reserves right to
employ other consultants in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for
or against any Party. Any term referencing time, days or period for performance shall
be deemed calendar days and not work days. All references to Consultant include all
personnel, employees, agents, and subcontractors of Consultant, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
and employees except as otherwise specified in this Agreement. The captions of the
various articles and paragraphs are for convenience and ease of reference only, and do
not define, limit, augment, or describe the scope, content, or intent of this Agreement.
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3.5.14 Amendment; Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual rights by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Consultant maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Consultant, to solicit or secure this Agreement. Further, Consultant
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, City shall have the
right to rescind this Agreement without liability. For the term of this Agreement, no
member, officer or employee of City, during the term of his or her service with City, shall
have any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising therefrom.
3.5.19 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, sexual orientation or age. Such non-discrimination shall
include, but not be limited to, all activities related to initial employment, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines
currently in effect or hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, Consultant certifies
that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Worker's Compensation or to
undertake self-insurance in accordance with the provisions of that Code, and agrees to
comply with such provisions before commencing the performance of the Services.
3.5.21 Authority to Enter Agreement. Consultant has all requisite power
and authority to conduct its business and to execute, deliver, and perform the
Revised 04/13
12
Agreement. Each Party warrants that the individuals who have signed this Agreement
have the legal power, right, and authority to make this Agreement and bind each
respective Party.
3.5.22 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original.
3.5.23 Exhibits and Recitals. All Exhibits and Recitals contained herein
are hereby incorporated into this Agreement by this reference.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any
portion of the work required by this Agreement, except as expressly stated herein,
without prior written approval of City. Subcontracts, if any, shall contain a provision
making them subject to all provisions stipulated in this Agreement.
In witness whereof the Parties have executed this Professional Services
Agreement on the date set forth below.
CITY OF ARCADIA KOA CORPORATION
By __ By ____________________________
Dominic Lazzaretto Signature
City Manager
Date: ______________________ ______________________________
Print Name and Title
ATTEST: Date: _________________________
___________________________ By____________________________
City Clerk Signature
APPROVED AS TO FORM: ______________________________
Print Name and Title
___________________________ Date: _________________________
Stephen P. Deitsch
City Attorney CONCUR:
______________________________
Tom Tait
Public Works Services Director
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E XHIBIT "A"
S COPE OF S ERVICES
Consultant will provide On-Call Construction Inspection Services (As-Needed Basis) for
Public Works Projects the include the inspection of workmanship, coordinate material
testing, materials quality, assurance of a clean site, monitor storm water BMP’s, verify
parking and notifications, check traffic control, verify material deliveries, and monitor
other contractor duties stipulated in the contract. The Consultant On-Call Inspection
Services shall include, but is not limited to the following tasks:
1. Review plans, specifications, and other contract and construction-
related documents. Become familiar with traffic control plans,
construction schedules, construction sequences, and permit
requirements from other agencies.
2. Photograph all phases of construction – before, during, and after
construction.
3. Attend Pre-Construction Meetings and present special concerns.
4. Interpret plans, specifications and regulations and ensure that
contractors are following their contracts. Provide inspections to
ensure projects are constructed according to project specifications.
5. Attend weekly progress meetings to communicate, coordinate and
resolve any issues or problems that may arise at the job site.
Prepare and submit to contractor a “Weekly Statement of
Calendar/Working Days” report.
6. Direct and notify construction contractors about non-compliance
and correct compliance problems as soon as they are discovered.
Report to City any violations to any applicable regulations.
7. Maintain daily diaries showing site and weather conditions; traffic
control measures taken by contractors; labor, equipment and
materials used; quantity of work performed; and major
incidents/safety violations. Daily diaries shall be submitted to City
upon project completion.
8. Review construction progress schedules on a weekly basis; verify
schedules to meet project milestones; identify deviations; and
ensure corrective actions are taken to maintain the project
schedule.
9. Provide accurate measurements of work completed by contractors
in accordance with contract documents.
10. Review soil compaction and materials testing certifications of
compliance (COC). Coordinate with City’s Acceptance Testing (AT)
and Independent Assurance Program (IAP) testing firms regarding
quality of work completed.
11. Ensure that contractors do not install materials without approved
material testing certifications. Any failed tests shall be reported and
direct contractor to take correction measures to achieve
compliance.
12. Coordinate and schedule sampling and testing of construction
materials, soil, and AC compaction tests.
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13. Arrange for batch plant inspections.
14. Retain tickets prior to placement of material
15. Record up-to-date construction information to use in preparation of
the record drawings.
16. Prepare daily reports per Caltrans CEM 4601 form. The daily
reports shall include but not limited to:
a. Contractor’s working hours on the jobsite.
b. Contractor and subcontractor personnel and equipment on the jobsite.
c. Weather conditions and observations as to the effect on the progress of
the work.
d. Decisions or directions given to the contractor. Items of this nature would
be those of usual work progress with directions to be included in a more
formal manner.
e. Daily utilization of the contractor and subcontractor equipment on the site,
but obviously idle or in temporary storage will be so noted on the report.
f. Observations connected with the progress of the work including
deficiencies or violations of contract requirements by the contractor.
g. Materials delivered to the job site, together with indication as to results of
inspection thereof.
h. Observed or potential delays and apparent causes. The contractor’s
reaction to these delays will be noted.
i. Data relative to claims, extras, change orders or deduction. This should
include those noted and agreed, as well as potential claims or items of
disagreement.
j. Maintain data for change orders and record information regarding time of
dispute, time of notification by contractor, and action taken by inspector.
k. List of visitors, including testing laboratory representatives or others.
17. Monitor storm water BMPs. Monitor compliance with the City’s
National Pollutant Discharge Elimination System (NPDES) Permits
and requirements. Monitor compliance with all other local, state,
and federal laws and regulations.
18. Provide complete measurements and calculations to administer
progress payments and make recommendations for payments.
19. Ensure that contractors submit certified payroll reports with monthly
progress payment requests. Review reports for compliance with
federal and state prevailing wage regulations. Ensure that labor and
hours reported by contractors match inspector’s daily diaries and
inspection reports.
20. Prepare and transmit to contractors’ correspondence related to
construction management and inspection of projects. All
correspondence sent to and received from contractors shall be
copied and transmitted to City.
21. Coordinate preparation and submittal of as-built plans to City upon
project completion.
22. Prepare preliminary and final punch list and follow through with
contractor until completion.
23. Upon project completion, conduct final inspection and close-out
encroachment and construction/excavation permits.
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24. Monitor contractors’ utility coordination to minimize utility conflict
delays and potential need for utility relocations. Report potential
conflicts to utilities, and advise them to relocate or remove
conflicting utilities and report outcome to City.
25. Conduct field construction employee interviews to comply with
Equal Employment Opportunity Law and Davis Bacon Act.
Interviews shall be reported to City on a regular basis.
26. Provide inspection of street lighting, traffic control, channelization,
and all other traffic-related work.
27. Check traffic control and parking. Observe construction safety,
public safety and convenience, and report discovered problems to
the City.
28. Maintain a copy of the contract documents and construction-related
documents at the site.
29. Coordinate with contractor access to adjacent businesses/residents
during construction. Coordinate mitigation of construction impacts
with contractor, City, and other agencies.
30. Evaluate completion of work and recommend to City when work is
ready for final inspection.
31. Conduct final inspection/walk through with City staff,
maintenance/service personnel and project architect/design
consultant.
32. Issue preliminary and final punchlist, including schedule for
punchlist completion. Monitor and follow through with contractor
until completion of all punchlist items.
33. Coordinate preparation and submittal of as-built plans to City upon
project completion.
34. Secure and transmit required guarantees, certifications, affidavits,
leases, easement deeds, operating & maintenance manuals,
warranties and other documents as stipulated in the contract
documents.
35. Review and submit in agreement accurate measurements of work
completed by the contractor in accordance with the contract
documents.
36. Deliver project files to City.
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Exhibit "B"
S CHEDULE OF S ERVICES
All work shall be completed in accordance with the following schedule:
The term of this Agreement shall be for one year from the date of execution. All task
schedules under Exhibit A shall be adhered to and executed accordingly.
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Exhibit "C"
C OMPENSATION
Compensation shall be based on time and materials spent in accordance with the
following tasks, not to exceed the total compensation listed:
On-Call Construction Inspection Services $65,000.00
For Public Works Projects
Total Compensation: $65,000.00
The total compensation shall not exceed the total listed without written authorization in
accordance with Section 3.3.1 of this agreement. Hourly rate fee information is
attached.
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