HomeMy WebLinkAbout06. CC 676A Smallwood asbestos abate
AGENDA MEMO
DATE:
May 11, 2010
TO:
Mayor and Members of the City Council
FROM:
Office of the City Manager
By: Brian A. Ragland, Director of Public Works
SUBJECT:CASH CONTRACT NO. 676A – SMALLWOOD TRANSIT YARD
ASBESTOS AND LEAD ABATEMENT PROJECT
RECOMMENDATION:
That the City Council:
1. Award Cash Contract No. 676A to Specialized Environmental, Inc. in the
amount of $18,952 for the Smallwood Transit Yard Asbestos and Lead
Abatement Project, and
2. Authorize the Mayor to execute a Professional Services Agreement with CNS
Environmental, Inc. in an amount not to exceed $16,720 for professional
environmental consulting, testing and monitoring services, and
3. Appropriate $45,000 from the Water Fund for Smallwood Transit Yard
Asbestos and Lead Abatement Project.
DISCUSSION:
During its meeting of April 13, 2010, the City Council approved the plans and
specifications and granted authority to advertise for bids for the abatement of lead and
asbestos material at the Smallwood Transit Yard facility. This facility, located on the
eastern side of Apollo Park, is in an extensive state of disrepair and ultimately needs to
be demolished. Before this facility can be demolished, the abatement of asbestos and
lead based paint materials must be performed in accordance with state and federal
requirements. On May 3, 2010, four bids were received and publicly opened, with the
results shown on the attached bid summation.
The apparent low bidder was Specialized Environmental, Inc. (Specialized) of Whittier,
with a bid of $18,952. Specialized is a qualified contractor and has completed similar
abatement projects for UCLA, LAUSD, Torrance Unified School District, the City of
Bellflower, and other agencies in the area. The project specification indicated the need
for the contractor to have a state issued hazardous (HAZ) certificate. Specialized does
not have the HAZ certificate and staff has determined that due to the scope of work to
be performed for this project, a HAZ Certificate is not required. Staff is therefore
recommending that this requirement be waived and the contract be awarded to
Specialized.
CITY OF DOWNEY, CALIFORNIA
Mayor and Members of the City Council
Smallwood Transit Yard Asbestos and Lead Abatement
May 11, 2010
Page 2
As part of the abatement, the City will need the services of an experienced professional
environmental consulting firm for the regulatory assistance and on-site project
monitoring of the abatement of identified asbestos and lead-based paint material at the
facility. Proposals were received from four qualified firms and CNS Environmental was
selected to provide such services. CNS Environmental will provide abatement oversight
and close-out documentation certifying cleanliness of the property during the abatement
activities, as well as monitoring services during the facility demolition activities.
FINANCIAL IMPACT:
A detailed cost accounting and funding analysis, based upon the bid received from
Specialized Environmental, Inc., is summarized below. The total estimated cost of the
asbestos and lead paint abatement project, as well as an additional $5,000 for
environmental consulting services during the demolition activities, is $45,000. This area
of the City is considered to be suitable for a future well site. Therefore, the Water Fund
is being utilized to fund this project in order to increase the open space on City-owned
property.
ESTIMATED PROJECT COST
Bid Amount$ 18,952
Contingency (15%)2,843$
TOTAL CONTRACT WORK:21,795$
Consultant Services - Abatement$ 11,720
Consultant Services - Demolition$ 5,000
TOTAL CONSULTANT SERVICES:16,720$
Construction Engineering & Contract Administration (15%)$ 6,485
TOTAL PROJECT COST:45,000$
FUNDING
Acct. No.Water FundsTotal
54-1-8665$ 45,000$ 45,000
TOTAL PROJECT FUNDING:45,000$
Attachments:
Bid Summation
CNS Environmental Professional Services Agreement
S:\AgendaMemosCC2010\05-11-10\CC676A Smallwood Yard (Award - Abatement)
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Professional Services Agreement (“Agreement”) is made and entered into this 11th
day of May, 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 CNS Environmental, Inc., a Corporation, with
its principal place of business at 650 North Rose Drive, Suite 616, Placentia, California 92870
(“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 Environmental
consulting 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 Cash Contract
No. 676A - Smallwood Transit Yard Asbestos and Lead Abatement Project (“Project”), located
at 12515 Smallwood Avenue, Downey, California 90242, 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 Environmental 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. 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 12, 2010, to
August 31, 2010, unless earlier terminated as provided herein. Consultant shall complete the
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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 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
(“Schedule”). Consultant represents and warrants that it has the professional and technical
knowledge and personnel required to perform the Services in conformance with the Schedule. 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 time lines to meet the Schedule.
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 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 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.
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3.2.6 Consultant’s Representative.
Consultant hereby designates Edward D.
Spinney, or his 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.
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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, for a period of five (5) 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 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,
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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
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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 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 ”C” attached hereto and incorporated herein by reference. In no
event shall the total compensation, including authorized cost and expense reimbursements,
exceed Sixteen Thousand Seven Hundred Twenty Dollars ($16,720.00) without written approval
of City’s Representative. Extra Work, as defined below, 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 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.
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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.
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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:
CNS Environmental, Inc.
650 North Rose Drive, Suite 616
Placentia, CA 92870
Attn: Edward D. Spinney,
Principal
City:
City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Attn: Brian A. Ragland
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:
(714) 524-5445
City:
(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 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 & Data at any time,
provided that any such use not within the purposes intended by this Agreement shall be at City’s
sole risk.
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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 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.
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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.
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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.
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SIGNATURE PAGE TO
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
CITY OF DOWNEY CNS ENVIRONMENTAL, INC.
“CITY” “CONSULTANT”
By: ____________________________ By: ______________________________
Anne M. Bayer Edward D. Spinney
Mayor Principal
Attest:
__________________________________
Kathleen L. Midstokke
City Clerk
Approved as to Form:
__________________________________
City Attorney
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EXHIBIT “A”
SCOPE OF SERVICES
The Services to be performed by Consultant for the Project pursuant to this
Agreement shall include but not be limited to the following specific tasks:
1.Consultant shall provide additional testing services and prepare a report with
recommendations of abating identified asbestos material and lead-based paint material at
the Smallwood Transit Yard.
2.Consultant shall provide consultation services including regulatory assistance and on-site
project monitoring for the abatement of identified asbestos material and lead-based paint
material at the Smallwood Transit Yard.
3.Consultant shall review “Asbestos Survey Report” prepared by Allstate Services
Environmental, Inc. dated June 2, 2003.
4.Consultant shall review “Lead-Based Paint Inspection Report” prepared by Allstate
Services Environmental, Inc. dated June 2, 2003.
5.Consultant shall perform on-site inspection to become familiar with facility and to verify
accuracy and acceptability of reports for use in upcoming abatement project.
6.Consultant shall provide cost estimate for the abatement of identified asbestos material and
estimate of time for the abatement based on the “Asbestos Survey Report”.
7.Consultant shall provide cost estimate for the abatement of identified lead-based paint
material and estimate of time for the abatement based on the “Lead-Based Paint Inspection
Report”.
8.Consultant shall review and make recommendations for changes to project specifications
provided by the City to ensure that:
a.Local, regional, state and federal guidelines and requirements are included.
b.Bid items and bid item descriptions are properly addressed and quantities are correct.
c.All work required to complete the project is addressed.
d.Change orders are minimized.
9.Consultant shall review bid proposals received from abatement contractors to ensure
compliance with bidding requirements, that the contractor is a responsible bidder and that
the Contractor and Subcontractors are qualified to perform the work.
10.Consultant shall attend pre-construction meeting.
11.Consultant shall monitor and oversee abatement contractors to insure compliance with the
specifications and regulatory requirements on the removal of components containing lead
or lead based paint and provide on-site air and wipe sampling and analysis.
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12.Consultant shall monitor and oversee abatement contractors to insure compliance with the
specifications and regulatory requirements on the asbestos abatement activities and provide
on-site air sampling and analysis.
13.Consultant shall track and document abatement contractors extra work activities for
possible change order charges and disposal tracking and compliance.
14.Consultant shall provide a written report to the City certifying that abatement contractor
has met project compliance with all applicable laws and requirements.
15.Consultant shall provide a written report to the City certifying that regulatory compliance
has been met on the project regarding the abatement of identified asbestos material and
lead-based paint material.
16.Other.
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EXHIBIT “B”
SCHEDULE OF SERVICES
Consultant shall complete all Services within the term of this Agreement and shall meet
all other established schedules and/or deadlines set by City staff.
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EXHIBIT “C”
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. In no
event shall total compensation, including authorized cost and expense reimbursements, exceed
Sixteen Thousand Seven Hundred Twenty Dollars ($16,720.00) without written approval of
City’s Representative.
Task Personnel Hours Hourly Rate Total
1. Additional Survey Sampling
Sampling $1,380.00
Technician & Report Preparation $200.00
2. Project Management
Project Manager 20 $80.00 $1,600.00
3. Abatement Monitoring
(Monitoring services is estimated based on twenty 8-hour shifts)
Certified Site Survey Technician & 160 $50.00 $8,000.00
DHS Insp. Assess/Project Monitor
4. Lead Waste Characterization
(Estimate based on one sample per each of the three buildings)
TTLC 3 samples (5-day turnaround @ $20.00/sample) $60.00
STLC (if required) 3 samples (5-day turnaround @ $85.00/sample) $255.00
TCLP (if required) 3 samples (5-day turnaround @ $75.00/sample) $225.00
5. Demolition Monitoring
(Monitoring and testing services is estimated based on ten 8-hour shifts)
Certified Site Survey Technician & 80 $50.00 $4,000.00
DHS Insp. Assess/Project Monitor
Testing (Estimated) $1,000.00
Total Project Cost $16,720.00
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Additional services rendered, although not included in the aforementioned tasks, shall be
at the rates set forth below. Additional services shall not be rendered without written approval of
City’s Representative.
Additional Personnel Rates
Personnel Rate
Project Manager $80.00
Cert. Asbestos Consultant $80.00
Certified Site Survey Technician $50.00
DHS Insp. Assess. $50.00
DHS Project Monitor $50.00
Clerical $40.00
Additional Testing Rates
Sample Rate Sample Rate
PLM – 5 days $10.00 PB Air – 5 days $11.00
PLM – 24 hours $14.00 PB Air – 24 hours $20.00
PLM – 8 hours $20.00 PB Air – 8 hours $40.00
PCM – 5 days $10.00 PB Water – 5 days $17.00
PCM – 24 hours $15.00 PB Water – 24 hours $25.00
PCM – 8 hours $20.00 PB Water – 8 hours $50.00
TEM – 5 days $72.00 TTLC – 5 days $20.00
TEM – 24 hours $100.00 TTLC – 24 hours $30.00
TEM – 8 hours $140.00 STLC – 5 days $85.00
PB Wipe – 5 days $15.00 STLC – 24 hours $115.00
PB Wipe – 24 hours $25.00 TCLP – 5 days $75.00
PB Wipe – 8 hours $40.00 TCLP – 48 hours $110.00
PB Bulk – 5 days $11.00 TCLP – 24 hours $150.00
PB Bulk – 24 hours $20.00 XRF Daily Rate $200.00
PB Bulk – 8 hours $40.00 Point Counts 1000 Pts. $80.00
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