HomeMy WebLinkAbout07. On-Call Testing Svcs
AGENDA MEMO
DATE:
April 27, 2010
TO:
Mayor and Members of the City Council
FROM:
Office of the City Manager
By: Brian A. Ragland, Director of Public Works
SUBJECT: ON-CALL MATERIALS TESTING SERVICES
RECOMMENDATION:
That the City Council authorize the Mayor to execute a Professional Services Agreement
with Smith-Emery Laboratories for On-Call Materials Testing Services for a period of up to
two years.
DISCUSSION:
The City frequently requires materials testing services to assist with street improvement,
pavement rehabilitation and other Capital Improvement Program (CIP) projects. In past
years, the City has contracted with various private firms through the City’s consultant
selection process to provide professional materials testing services on projects, but is
currently not under contract with any particular firm. As with traffic engineering design,
land surveying, real estate appraisal and construction inspection services, the City has
found it to be more expedient, efficient, and cost-effective to augment City staff with On-
Call Professional Services in order to ensure timely completion of City projects as
opposed to going through a lengthy selection process each time these services are
needed.
Proposals for On-Call Materials Testing Services with specific hourly rates for required
tests and tasks were received from the three firms. After a review of the submitted
materials, staff determined that Smith-Emery Laboratories is the most qualified and cost-
effective firm to provide on-call materials testing services. This determination was based
upon Smith-Emery Laboratories’ responsiveness to the City’s request for proposal, a
demonstrated understanding of the City’s needs and professional qualifications necessary
for the satisfactory performance of the services required.
Smith-Emery Laboratories has previously provided similar professional services to the
City of Downey for the Stewart and Gray Road and Downey Avenue Pavement
Rehabilitation projects as well as special deputy inspection for the Columbia Memorial
Space Center. The proposed billing rates offered by Smith-Emery Laboratories range
from $71 to $85 per hour for technicians, inspectors, and supervisors to perform required
visual inspection and testing services. The other firms quoted rates that range from $75
to $185 per hour for said services. Overall, Smith-Emery Laboratories’ fee structure is
considerably less than the other two firms.
CITY OF DOWNEY, CALIFORNIA
Mayor and Members of the City Council
On-Call Materials Testing Services
April 27, 2010
Page 2
The Consultant’s services will generally include the testing and inspection of asphalt,
concrete, subgrade soils, and aggregate base to ensure that they meet mandated
standard requirements and contract specifications for CIP projects (i.e. road and drainage
facilities). The on-call materials testing services will be provided on an as-needed basis
to supplement and assist City staff for a period of up to two years.
The following are anticipated types of materials testing and tasks to be performed by the
Consultant:
Field testing and inspection during subgrade preparation for new pavement,
sidewalks, curb and gutter, cross gutters, and walls; and collecting samples of
subgrade and aggregate base material for laboratory testing;
Monitoring and performing compaction tests for subgrade soil, aggregate base,
and asphalt concrete using a nuclear density gauge;
Asphalt plant inspection and sampling during asphalt production and start-up;
Laboratory testing for subgrade soils, aggregate base, asphalt concrete, and
Portland cement concrete per project specifications;
Generating reports and providing test results to the Project Engineer;
Providing engineering support, inspector/technician coordination, dispatch,
material engineering review, quality control, and administrative support services;
and
Providing necessary traffic control during field testing.
FINANCIAL IMPACT:
Materials testing for each project will vary in the number of man-hours and tests required.
The proposed rates in the fee schedule shall apply to each project. The services will be
authorized on a project-by-project basis based upon the degree of materials testing
needed. The cost of the on-call materials testing will be charged to the construction
engineering budget of the specified CIP project where their services are utilized.
Attachment:
Professional Services Agreement
S:\AgendaMemosCC2010\04-27-10\On-Call Materials Testing Services
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Professional Services Agreement (“Agreement”) is made and entered into
th
this 27 day of April, 2010 by and between the City of Downey, a municipal corporation
organized under the laws of the State of California, with its principal place of business at
11111 Brookshire Avenue, Downey, California 90241 (“City”) and Smith-Emery
Laboratories, a Corporation, with its principal place of business at 1195 N. Tustin
Avenue, Anaheim, CA 92807(“Consultant”). City and Consultant are sometimes
individually referred to herein as “Party” and collectively as “Parties.”
2. RECITALS.
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
professional Engineeringconsulting 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 On-Call
Materials Testing Services (“Services”) as set forth in this Agreement.
3. TERMS.
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 materials
testing 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. To the extent that
anything in any Exhibits to this Agreement conflict with the terms of the Agreement, the
Agreement shall control and the Exhibits shall have no force or effect.
3.1.2 Term.
The term of this Agreement shall be from May 1, 2010 to
April 30, 2012, 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 that may be set by City staff in carrying out the terms of this
Agreement.
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 shall 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 and within the term of this Agreement. Consultant represents and
warrants that it has the professional and technical knowledge and personnel required to
perform the Services in a timely manner. In order to facilitate Consultant’s expeditious
delivery of services, 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 time lines to meet an agreed upon Schedule whenever services are
provided by Consultant.
3.2.3 Conformance to Applicable Requirements.
All work prepared by
Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel.
Consultant has represented to
City that certain key personnel shall 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 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 at the request of the
City.
3.2.5 City’s Representative.
The City hereby designates its City
Manager, or his/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 Agreement. Consultant shall not accept
direction or orders from any person other than the City’s Representative or his/her
designee.
3.2.6 Consultant’s Representative.
Consultant hereby designates
,
Robert Greeley, Project Manageror his/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 warrants
that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subcontractors shall have sufficient skill and
experience to perform the Services assigned to them. Finally, Consultant represents
and warrants 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, but not
limited to 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 without giving written notice to the City, Consultant shall
be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify
and hold the City, its directors, officials, officers, employees, agents and volunteers 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.
3.2.10 Insurance.
3.2.10.1 Time for Compliance.
Consultant shall not
commence Services 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.
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 this Agreement by the Consultant, its agents,
representatives, employees or subcontractors. Consultant shall also require all of its
subcontractors to procure and maintain the same insurance for the duration of the
Agreement. Such insurance shall meet at least the following minimum levels of
coverage:
(A) Minimum Scope of Insurance.
Coverage shall be at
least as broad as the latest version of the following: (1) General Liability: Insurance
Services Office Commercial General Liability coverage (occurrence form CG 0001); (2)
Automobile Liability: Insurance Services Office Business Auto Coverage form number
CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability:
Workers’ Compensation insurance as required by the State of California and Employer’s
Liability Insurance.
(B) Minimum Limits of Insurance.
Consultant shall
maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily
injury, personal injury and property damage. 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: $2,000,000 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 $2,000,000 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, errors and omissions
liability insurance appropriate to their profession. Such insurance shall be in an amount
not less than approved by the City’s Finance Director, 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, employees, agents
and volunteers shall be covered as additional insured with respect to the Services or
operations performed by or on behalf of the Consultant, including materials, parts or
equipment furnished in connection with such Services; and (2) the insurance coverage
shall be primary insurance as respects the City, its directors, officials, officers,
employees, agents and volunteers, 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, agents
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, employees,
agents and volunteers 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, employees, agents and volunteers, 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, agents and volunteers 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 Employer’s Liability
Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, employees, agents and volunteers for losses paid under the
terms of the insurance policy which arise from work performed by the Consultant.
(D) All Coverage.
Each insurance policy required by this
Agreement shall be endorsed to state that: (1) coverage shall not be suspended,
voided, reduced or canceled except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City; and (2) 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, employees,
agents and volunteers.
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, employees,
agents and volunteers.
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: (A) the insurer shall
reduce or eliminate such deductibles or self-insured retentions as respects the City, its
directors, officials, officers, employees, agents and volunteers; or (B) 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:VIII, licensed to do
business in California, and satisfactory to the City.
3.2.10.8 Verification of Coverage.
Consultant shall furnish
City with original 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 by a person authorized by that
insurer to bind coverage on its behalf, and shall be on forms provided by the City if
requested. All certificates and endorsements must be received and approved by the
City before performance of Services commences. The City reserves the right to require
complete, certified copies of all required insurance policies, at any time.
3.2.11 Safety.
Consultant shall execute and perform 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 traffic control for work area protection as
required by the latest version of the Work Area Traffic Control Handbook (WATCH) or
California Manual of the Traffic Control Devices (CAMUTCD) 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.
3.3 Fees and Payments.
3.3.1 Compensation.
Consultant shall receive compensation, including
authorized cost and expense reimbursements, for all Services rendered under this
Agreement at the rates set forth in Exhibit “B” attached hereto and incorporated herein
by reference.In no event shall the total compensation, including authorized cost and
expense reimbursements, exceed the cost as determined by the hours expended
multiplied by the applicable hourly rate(s) set forth in Exhibit “B”.
3.3.2 Payment of Compensation.
Consultant shall submit to City a
monthly itemized statement which indicates the portion of Services work completed and
hours of work rendered by Consultant. The statement shall describe the portion of
Services and hours of work rendered by Consultant since the initial commencement
date, or since the start of 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 authorized in writing by City.
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 written authorization from City’s Representative.
3.3.5 Prevailing Wages.
Consultant is aware of the requirements of
California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California
Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which
require the payment of prevailing wage rates and the performance of other
requirements on certain “public works” and “maintenance” projects. If the Services are
being performed as part of an applicable “public works” or “maintenance” project, as
defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or
more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall
provide Consultant with a copy of the prevailing rates of per diem wages in effect at the
commencement of this Agreement. Consultant shall make copies of the prevailing rates
of per diem wages for each craft, classification or type of worker needed to execute the
Services available to interested parties upon request, and shall post copies at the
Consultant’s principal place of business and at the Project site. Consultant shall
defend, indemnify and hold the City, its directors, officials, officers, employees, agents
and volunteers free and harmless from any claims, liabilities, costs, penalties or interest
arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
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.
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 & Data, as defined below, 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.
3.5.2 Delivery of Notices.
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:Smith-Emery Laboratories
1195 N. Tustin Avenue
Anaheim, CA 92807
Attn: Robert Greeley
Project Manager
City:City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Attn: Edwin J. Norris
Deputy Director of Public Works
Such notice shall be deemed made when personally delivered or when mailed,
two business days 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.
Notice shall also be deemed made by facsimile with return confirmation.
Consultant:
FAX (714) 238-6144
City:
City of Downey Facsimile Number (562) 904-7296
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 City 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 & 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.
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 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 Attorneys’ 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 attorney’s fees and all other costs of such
action.
3.5.6 Indemnification.
Consultant shall defend, indemnify and hold the
City, its directors, officials, officers, employees, agents and volunteers 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 actual or alleged negligent acts,
omissions or willful misconduct of Consultant, its officials, officers, employees, agents,
Consultants and subcontractors 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 attorneys’ fees, expert witness fees, and other related
costs and expenses. Consultant shall defend, 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, employees,
agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against the City and/or its directors, officials, officers, employees,
agents or volunteers, in any such suit, action or other legal proceeding. Consultant
shall reimburse the City and its directors, officials, officers, employees, agents and/or
volunteers, 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, employees, agents and volunteers.
3.5.7 Entire Agreement.
This Agreement contains the entire Agreement
of the parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings, letters, memoranda or agreements. This Agreement may
only be modified by a writing signed by both Parties.
3.5.8 Governing Law.
This Agreement shall be governed by the laws of
the State of California without regard to conflicts of law principles. Venue shall be in
Los Angeles County or the appropriate federal court including Los Angeles County
within its boundaries.
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 the
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, and shall not be assigned by Consultant
without the prior written consent of the City, which may be given or withheld in the City’s
sole and absolute discretion.
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, which may be given or
withheld in the City’s sole and absolute discretion. 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. Unless otherwise specified in this Agreement, 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,
Consultants and subcontractors of Consultant except as otherwise specified in this
Agreement. All references to City include its directors, officials, officers, employees,
agents, and volunteers 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.
3.5.14 Amendment; Modification.
No waiver, 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 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 Workers’ 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
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.
3.6 Subcontracting.
3.6.1 Prior Approval Required.
Consultant shall not subcontract any
portion of the Services required by this Agreement, except as expressly stated herein,
without prior written approval of the City. Subcontracts, if any, shall contain a provision
making them subject to all provisions stipulated in this Agreement.
SIGNATURE PAGE TO
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
CITY OF DOWNEY SMITH-EMERY LABORATORIES
“CITY” “CONSULTANT”
By: ____________________________ By:
Anne M. Bayer, Mayor Jim Partridge, President
Attest:
__________________________________
Kathleen L. Midstokke, City Clerk
Approved as to Form:
__________________________________
City Attorney
EXHIBIT “A”
SCOPE OF SERVICES
The Services to be performed by Consultant pursuant to this Agreement
shall include but not be limited to the following tasks:
1. Field Testing and Inspection
Consultant shall have a representative on-site during subgrade
preparation and aggregate base placement to conduct field testing
(nuclear gauge) of compacted subgrade and aggregate materials. The
Consultant shall collect samples of subgrade and aggregate base
material for laboratory testing.
Consultant shall take coring samples of existing pavement for
determining existing structural sections at locations determined by the
Project Engineer.
During paving operations, the Consultant shall monitor and conduct
compaction tests for asphalt concrete (AC) and Asphalt Rubberized
Hot Mix (ARHM) using a nuclear density gauge.
Complete Mixture
- In-place density and relative compaction of AC pavement by
nuclear method (CTM 375). Sample from the job site, across
the mat, immediately behind the paving machine.
- Maximum Density (CTM 375).
- Asphalt Content (CTM 310, 362 & 379)
2. Laboratory Testing and Inspection
Consultant shall conduct laboratory tests for samples of subgrade and
aggregate base material involving sieve analysis (fine and course) and
determining Sand Equivalency and Specific Gravity.
Consultant shall inspect asphalt plant and conduct sampling during
AC/ARHM production and start-up.
Consultant shall perform laboratory testing for AC/ARHM to determine
Durability Index, Gradation, and Sand Equilibrium per project
specifications.
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Aggregate Prior to Mixing – Sieve Analysis (CTM 202). This test
shall be performed at the AC batch plant and shall be done
simultaneously with the paving operation. Test results on Sieve
Analysis must be reported immediately each time a test is
completed by calling the Project Engineer or Inspector. Test results
in a report form could be submitted later.
Consultant shall perform laboratory testing for Portland Cement
Concrete (PCC) per project specifications.
- Compressive Strength Test (California Test Method 539, 540).
Tester will take fresh concrete samples from the job site and test
them for 7 & 28-day compressive strength.
3. Test Results
Consultant shall prepare and submit to the Project Engineer reports (daily
and final) on field observations, field sampling and testing, and related
laboratory testing results and conclusions.
4. Meetings
If required by the Project Engineer, the Consultant shall attend
preconstruction meetings and/or any subsequent meetings to resolve any
issues, conflicts, etc. or explain and analyze test results.
5. Traffic Control
Consultant shall provide traffic control for work area protection as required
by the latest version of the Work Area Traffic Control Handbook (WATCH)
or California Manual of the Traffic Control Devices (CAMUTCD) and other
safety devices, equipment and wearing apparel as are necessary or
lawfully required to prevent accidents or injuries. The Consultant may be
required to prepare a traffic control plan depending on the field location.
6. Project Management
Consultant shall provide engineering support, inspector/technician
coordination, dispatch, material engineering review, QA/QC, and
administrative support services as required by the Project Engineer.
Quality Control shall be an ongoing task throughout the duration of each
project.
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EXHIBIT “B”
COMPENSATION
Consultant shall receive rate-based compensation, including authorized cost and expense
reimbursement, for all Services rendered under this Agreement at the rates set forth
below.
UNIT RATE
Subgrade & Aggregate Base Materials
Engineering Technician Hours $ 71.00
Compaction Curve for Subgrade Soil Each $ 100.00
Compaction Curve for Aggregate Base Each $ 100.00
Sieve Analysis, Fine and Course Each $ 50.00
Sand Equivalency Each $ 50.00
Specific gravity Each $ 50.00
Hot Mix Asphalt Concrete
Inspector, Field and Plant Hours $ 71.00
Compaction Curve for AHRM Each $ 100.00
Extraction and Asphalt Content, for
AHRMEach $ 75.00
Durability Index Each $ 75.00
Gradation Each $ 50.00
Sand Equilibrium Each $ 50.00
Portland Cement Concrete
Inspector, Check Rebar, Sample
Hours $ 71.00
Concrete
Concrete Compression Test Each $ 20.00
Concrete Sample Pick-up Each $ 10.00
Administrative Services
Supervision, Engineering Q/A Q/C Hours $ 85.00
Materials Engineer Hours $ 75.00
Administrative Assistance Hours $ 35.00
Traffic Control
Traffic Control Half-Day $ 150.00
Traffic Control Day $ 300.00