HomeMy WebLinkAbout07. Budlong & Associates, On-Call Electrical
AGENDA MEMO
DATE:
October 26, 2010
TO:
Mayor and Members of the City Council
FROM:
Office of the City Manager
By: John Oskoui, P.E., Director of Public Works
SUBJECT: PROFESSIONAL ON-CALL ELECTRICAL AND MECHANICAL
ENGINEERING SERVICES AGREEMENT – EXECUTE
PROFESSIONAL SERVICES AGREEMENTS
RECOMMENDATION:
That the City Council authorize the Mayor to execute Professional Services Agreements
with Budlong & Associates, Inc., Glumac and the IDS Group for Professional On-Call
Electrical and Mechanical Engineering Services for a period of up to two years.
BACKGROUND:
The City has used electrical and mechanical engineering services to augment City staff
on major capital improvement projects involving electrical and mechanical systems (i.e.,
City Hall HVAC System Upgrade, North Civic Center Parking Lot Renovation, Fire
Station 1 Gates Upgrade Project, etc.). Currently, the City does not have this particular
expertise on-staff and, therefore, is required to contract with consulting firms for these
services.
In the past, the City has utilized the services of various engineering firms for these
services on an individual project basis, which would require a City Council action in
order to award a contract to the particular firm. The City is currently in need of electrical
and mechanical engineering design services for the replacement of the HVAC System
at the library to be funded through an Energy Efficiency and Conservation Block
formula-based Grant (EECBG) in the amount of $1,014,000 from the U.S. Department
of Energy (DOE) through the American Recovery and Reinvestment Act of 2009
In order to streamline the procurement process, ensure the availability of consultants
when needed and take advantage of the most competitive rates as possible, staff
prepared a Request for Qualifications (RFQ) for On-Call Electrical and Mechanical
Engineering Services in order to pre-qualify and retain up to three firms to provide said
services on an as-needed basis.
DISCUSSION:
On September 24, 2010, the City distributed the RFQ to the following eight firms:
Linwood Engineering IDS Group
Hess Engineering, Inc. Meyer and Associates
Budlong & Associates, Inc. Glumac
RPM Engineers, Inc. Ishii Engineering
CITY OF DOWNEY, CALIFORNIA
Mayor and Members of the City Council
On-Call Electrical and Mechanical Engineering Services
October 26, 2010
Page 2
Proposals were received from five of the firms on October 8, 2010. Based on a review
of the proposals, Budlong & Associates, Inc., Glumac and the IDS Group were rated as
the three highest among the eight firms based on qualifications, the firms’ experience
relative to various upcoming City projects (i.e., library HVAC system upgrade)
understanding of the services to be provided, references and cost effectiveness.
The Professional Services Agreements with Budlong & Associates, Inc., Glumac and
the IDS Group are attached. The execution of the attached agreements will establish
agreements with each of these three firms for a period of up to two years.
FINANCIAL IMPACT:
The cost for the electrical and mechanical engineering services to be provided by
Budlong & Associates, Inc., Glumac and the IDS Group will be billed at various hourly
rates, depending on the classification of the particular employee of the firm(s) being
utilized. The cost of these services will be charged directly to specific projects in the
Capital Improvement Program.
Attachments:
“A” – Budlong & Associates, Inc. Professional Services Agreement
“B” – Glumac Professional Services Agreement
“C” – IDS Group Professional Services Agreement
S:\AgendaMemosCC2010\10-26-10\On-Call Electrical Mechanical Engineering Services
2
ATTACHMENT “A”
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL MECHANICAL AND ELECTRICAL SERVICES
1. PARTIES AND DATE.
This Professional Services Agreement (“Agreement”) is made and entered into this
_______ day of 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 Budlong &
Associates, Inc., with its principal place of business at 315 Arden Avenue, Ste. 23 Glendale, CA
91203 (“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 Engineering
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 on an On-Call basis to
assist the City with professional mechanical and electrical engineering services as set forth in
this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services.
Consultant’s services shall generally
consist of providing professional on-call mechanical and electrical services on City
assessment/evaluation studies and/or capital improvement projects. A general description of
the Scope of Services of the Consultant are attached hereto as Exhibit “A” and incorporated
herein by this reference. The specific tasks to be provided by the Consultant may vary from
project to project. Each project shall have a specific written Scope of Services agreed upon by
City and Consultant, which shall be incorporated into this Agreement as if originally set forth
herein, and shall replace any and all previous specific written Scope of Service that may have
been previously referenced and incorporated. These tasks shall be as specified in the work
order to be issued by the City to the Consultant prior to starting any call-out work. Work orders
shall be in a written form, except for emergencies, in which case a verbal work order to the
Consultant will suffice, provided that a written confirmation of the verbal work order, and the
nature of the emergency that warranted the verbal work order, is provided within two (2)
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business days of the emergency verbal work order. 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 Engineeringconsulting services
necessary. 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.
This Agreement shall be effective for a period not to exceed two
(2) years from the date of execution of this Agreement by the Mayor for the City. 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.
3.1.3 On-Call Project Terms.
The execution of this Agreement by the Parties
does not constitute an authorization to proceed. The services of Consultant shall commence
when City, acting by and through its Director of Public Works, has issued a written Authorization
to Proceed. Each project shall have a specific written scope of services and schedule agreed
upon by City and consultant, prior to any Authorization to Proceed. The specific schedule to be
provided by the Consultant may vary from project to project. Each schedule shall be
incorporated into this Agreement as if originally set forth herein, and shall replace any and all
previous schedule(s) that may have been previously referenced and incorporated. The work
shall be completed as described following Consultant’s receipt of the Authorization to Proceed,
exclusive of any review periods required by City. The Consultant shall have no claim for
compensation for any services or work which has not been authorized by City’s Authorization to
Proceed.
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.
For each Call-Out, a project specific Schedule of
Services will be developed similar to that of Exhibit “C” - “Sample Schedule of Services”. City
and Consultant will agree on the tasks, task durations and overall project schedule. Consultant
shall perform the Services expeditiously, within the term of this Agreement, and in accordance
with the agreed-to project specific Schedule of Services. Consultant represents and warrants
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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 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 James A.
,
Jordan, P.E. or 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
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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
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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.
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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 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.
Compensation for each On-Call project shall be based on the specific Scope of Services, hourly
rates and manhour requirements negotiated between the City and Consultant and approved by
the Director of Public Works. Extra Work, as defined below, may be authorized as described
below, and if authorized, shall 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.
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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.
Extra Work shall be compensated at the rates and in the manner set forth in Exhibit “C”
attached hereto and incorporated herein by reference, unless a flat rate or some other form of
compensation is mutually agreed upon by the parties. Consultant shall be paid for Extra Work,
as defined by this Agreement, so long as they have been approved in advance by the City. If
City requires Consultant to hire consultants to perform Extra Work, Consultant shall be
compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto
and incorporated herein by reference, unless a flat rate or some other form of compensation is
mutually agreed upon by the parties. City shall have the authority to review and approve the
rates of any such consultants.
3.3.5 Prevailing Wages.
Consultant is aware of the requirements of California
Labor Code Sections 1720 etseq. and 1770 etseq., as well as California Code of Regulations,
Title 8, Section 16000 etseq. (“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,
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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:Budlong & Associates, Inc.
5151 Verdugo Way, Suite 201
Camarillo, CA 93012
Attn: James A. Jordan, P.E.
President
City:City of Downey
Director of Public Works
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:
(818) 638-8781
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
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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.
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
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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,
12
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.
13
SIGNATURE PAGE TO
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
CITY OF DOWNEY Budlong & Associates, Inc.
“CITY” “CONSULTANT”
By: ____________________________ By:
Anne M. Bayer, Mayor
Attest:
__________________________________
Kathleen L. Midstokke, City Clerk
Approved as to Form:
__________________________________
Charles S. Vose, City Attorney
14
EXHIBIT “A”
SAMPLE ENGINEER’S SCOPE OF SERVICES BASED ON
REQUEST FOR STATEMENT OF QUALIFICATIONS FOR ENGINEERING
PROFESSIONAL SERVICES NO. 10-01
1. GENERAL REQUIREMENTS.
1.1 Basic Services.
Engineer agrees to perform all the necessary professional
engineering (e.g. mechanical, electrical, plumbing, site engineering, and any other necessary
engineering services) and construction administration services for the Project in a timely and
professional manner, consistent with the standards of the profession, including those provided
for herein.
1.2 Exclusions from Basic Services.
The following services shall be excluded
from the basic services listed above: soils engineering, geotechnical services, hazardous waste
or toxic substance engineering.
1.3 Additional Services.
Engineer shall perform the following Additional Services
for the Project: NOT APPLICABLE
1.4 Communication with City.
Engineer shall participate in consultations and
conferences with authorized representatives of City and/or other local, regional, or state
agencies concerned with the Project, which may be necessary for the completion of the Project
or the development of the drawings, specifications and documents in accordance with the
applicable standards and requirements of law and the City. Such consultations and
conferences shall continue throughout the planning and construction of the Project and the
contractor’s warranty period. Engineer shall take direction only from the City’s Representative,
or any other representative specifically designated by the City for this Project, including any
construction manager hired by the City.
1.5 Coordination and Cooperation with Construction Manager.
The City may
hire a construction manager to administer and coordinate all or any part of the Project on its
behalf. If the City does so, it shall provide a copy of its agreement with the construction
manager so that the Engineer will be fully aware of the duties and responsibilities of the
construction manager. The Engineer shall cooperate with the construction manager and
respond to any requests or directives authorized by the City to be made or given by the
construction manager. The Engineer shall request clarification from the City in writing if the
Engineer should have any questions regarding the authority of the construction manager.
2. INITIAL PLANNING PHASE.
During the initial planning phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
2.1 Project Feasibility.
Provide advice and assistance to City in determining the
feasibility of the Project, analysis of the type and quality of materials and construction to be
selected, the site location, and other initial planning matters.
15
2.2 Meeting Budget and Project Goals.
Engineer shall notify City in writing of
potential complications, cost overruns, unusual conditions, and general needs that potentially
impact the Project budget and time line, including the City’s Preliminary Construction Budget.
Engineer shall use its best judgment in determining the balance between the size, type and
quality of construction to achieve a satisfactory solution within the Project’s budget and
construction allowance. It shall be the duty of the Engineer to design the Project within budget.
As discussed below, if the lowest responsive and responsible bid for the Project exceeds the
budget by the specified amount, Engineer may be required to make the necessary changes in
the drawing and specifications, at its sole cost and expense, to bring the bids within the required
budget, unless the City, in its sole discretion, determines that bids are affected by market factors
not within the reasonable control of the Engineer (e.g., labor or material shortage) and bids are
received more than six (6) months following the completion of the Final Working Drawings and
Specifications, as defined herein.
2.3 Permits, Approvals and Authorizations.
As indicated in Section 3.5.4,
Engineer shall assist City in securing easements, encroachment permits, rights of way,
dedications, infrastructures and road improvements, as well as coordinating with utilities and
adjacent property owners.
3. SCHEMATIC PLAN PHASE.
During the schematic plan phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
3.1 Funding Documents.
Engineer shall provide a site plan and all other Project-
related information necessary and required for an application by City to any federal, state,
regional, or local agencies for funds to finance the construction Project.
3.2 Schematic Plans.
In cooperation with City, Engineer shall prepare preliminary
plans and studies, schematic drawings, site utilization plans, and phasing plans showing the
scale and relationship of the components of the Project, the plot plan development at the site,
and the proposed Engineering concept of the buildings (“Schematic Plans”). Engineer shall
incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans
shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall
show all rooms incorporated in each building of the Project in single-line drawings, and shall
include all revisions required by City or by any federal, state, regional or local agency having
jurisdiction over the Project. All Engineering drawings for the Project shall be in a form suitable
for reproduction.
3.3 Preliminary Project Budget.
Engineer shall use the City’s Preliminary
Construction Budget and its own expertise and experience with the Project to establish a
preliminary project budget or allowance in a format required by City (“Engineer’s Preliminary
Project Budget”). The purpose of the Engineer’s Preliminary Project Budget is to show the
probable Project cost in relation to City’s Preliminary Construction Budget and the construction
standards of any applicable funding agency. If Engineer perceives site considerations which
render the Project expensive or cost prohibitive, Engineer shall disclose such conditions in
writing to City immediately. As stated above, if the lowest responsive and responsible bid for
the Project exceeds the budget by the specified amount, Engineer may be required to make the
necessary changes in the drawings and specifications, at its sole cost and expense, to bring the
bids within the required budget, unless the City, in its sole discretion, determines that bids are
affected by market factors not within the reasonable control of Engineer (e.g. labor or material
16
shortage) and bids are received more than six (6) months following the completion of the Final
Working Drawings and Specifications, as defined herein. Engineer shall provide a preliminary
written time schedule for the performance of all construction work on the Project.
3.4 Copies of Schematic Plans and Other Documents.
Engineer, at its own
expense, shall provide three (3) complete sets of the Schematic Plans described herein for
City’s review and approval. Additionally, at City’s expense, Engineer shall provide such
documents as may be required by any federal, state, regional or local agencies concerned with
the Project. Any additional copies required by City shall be provided at actual cost to City.
4. DESIGN DEVELOPMENT PHASE.
During the design development phase of the Project, Engineer shall do all of the
following, as well as any incidental services thereto:
4.1 Design Development Documents.
Once City provides Engineer with specific
written approval of the Schematic Plans described herein, Engineer shall prepare design
development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other
drawings and documents sufficient to fix and describe the types and makeup of materials, as
well as the size and character of the Project’s structural, mechanical and electrical systems, and
to outline the Project specifications (“Design Development Documents”). The Design
Development Documents shall be prepared in sufficient form to present to the City Council for
approval.
4.2 Copies of Design Development and Other Documents.
Engineer, at its own
expense, shall provide three (3) complete sets of the Design Development Documents
described herein for City’s review and approval. Additionally, at City’s expense, Engineer shall
provide such documents as may be required by any federal, state, regional or local agencies
concerned with the Project. Any additional copies required by City shall be provided at actual
cost to City.
4.3 Updated Project Budget.
Engineer shall use its Preliminary Project Budget and
expertise and experience with the Project to establish an updated estimate of probable
construction costs, containing detail consistent with the Design Development Documents as set
forth herein and containing a breakdown based on types of materials and specifications
identified herein (“Engineer’s Updated Project Budget”).
4.4 Timetable.
Engineer shall provide a written timetable for full and adequate
completion of the Project to City.
4.5 Application for Approvals.
Engineer shall assist City in applying for and
obtaining required approvals from all federal, state, regional or local agencies concerned with
the Project. Engineer shall furnish and process all Engineering and engineering information
required to prepare and process applications to applicable utilities in order to secure priorities
and materials, to aid in the construction of the Project and to obtain final Project approval and
acceptance by any of the above agencies as may be required.
4.6 Color and Other Aesthetic Issues.
Engineer shall provide, for City’s review
and approval, a preliminary schedule of all color materials and selections of textures, finishes
and other matters involving an aesthetic decision about the Project.
17
5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.
During the final working drawings and specifications phase of the Project, Engineer shall
do all of the following, as well as any incidental services thereto:
5.1 Final Working Drawings and Specifications.
Once City provides Engineer
with specific written approval of the Design Development Documents described herein,
Engineer shall prepare such complete working drawings and specifications as are necessary for
developing complete bids and for properly executing the Project work in an efficient and
thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings
and Specifications shall be developed from the Schematic Plans and Design Development
Documents approved by City. The Final Working Drawings and Specifications shall set forth in
detail all of the following: (1) the Project construction work to be done; (2) the materials,
workmanship, finishes, and equipment required for the Engineering, structural, mechanical, and
electrical systems; and (3) the utility service connection equipment and site work. As indicated
in Section 3.9.2, City may be requested to supply Engineer with the necessary information to
determine the proper location of all improvements on and off site, including record drawings
(“record drawings”) in City’s possession. City shall make a good-faith effort to verify the
accuracy of the record drawings and provide any supplemental information to Engineer which
may not be shown on the record drawings.
5.2 Form.
The Final Working Drawings and Specifications must be in such form as
will enable Engineer and City to secure the required permits and approvals from all federal,
state, regional or local agencies concerned with the Project. In addition, the Final Working
Drawings and Specifications must be in such form as will enable City to obtain, by competitive
bidding, a responsible and responsive bid within the applicable budgetary limitations and cost
standards. The Final Working Drawings and Specifications shall be clear and legible so that
uniform copies may be on standard Engineering size paper, properly indexed and numbered,
and shall be capable of being clearly copied and assembled in a professional manner by
Engineer.
5.3 Approval and Revisions.
City shall review, study, and check the Final Working
Drawings and Specifications presented to it by Engineer, and request any necessary revisions
or obtain any necessary approvals by the City Council, subject to the approval of all federal,
state, regional or local agencies concerned with the Project. Engineer shall make all City-
requested changes, additions, deletions, and corrections in the Final Working Drawings and
Specifications at no additional cost, so long as they are not in conflict with the requirements of
public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or
Engineer’s professional judgment. Engineer shall bring any such conflicts and/or
inconsistencies to the attention of City. The parties agree that Engineer, and not the City,
possesses the requisite expertise to determine the constructability of the Final Working
Drawings and Specifications. However, the City reserves the right to conduct one or more
constructability review processes of the Final Working Drawings and Specifications at 75% to
90% completion levels with the assistance of the Engineer, its engineers and consultants, and
to hire an independent Engineer or other consultant to perform such reviews at 90% to 100%
completion level. Any such independent constructability review shall be at City’s expense.
Engineer shall make all City-requested changes, additions, deletions, and corrections in the
Final Working Drawings and Specifications which may result from any constructability review, at
no additional cost to the City, so long as they are not in conflict with the requirements of public
agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or
18
Engineer’s professional judgment. If such changes, additions, deletions or corrections are
inconsistent with prior City direction, Engineer shall make such alterations and be compensated
therefore pursuant to the Additional Services provision of this Agreement.
5.4 Costs of Construction.
It is understood by Engineer that should the Final
Working Drawings and Specifications be ordered by City, City shall specify the sum of money
set aside to cover the total cost of construction of the work, exclusive of Engineer’s fees.
Should it become evident that the total construction cost will exceed the specified sum,
Engineer shall at once present a statement in writing to the City’s Representative setting forth
this fact and giving a full statement of the cost estimates on which the conclusion is based.
5.5 Copies of Final Working Drawings and Specifications and Other
Documents.
Engineer, at its own expense, shall provide five (5) complete sets of the Final
Working Drawings and Specifications described herein for City’s review and approval.
Additionally, at City’s expense, Engineer shall provide such documents as may be required by
any federal, state, regional or local agencies concerned with the Project. Any additional copies
required by City shall be provided at actual cost to City.
6. CONSTRUCTION CONTRACT DOCUMENTS.
During the construction contract documents phase of the Project, Engineer shall do all of
the following, as well as any incidental services thereto:
6.1 Bid and Contract Documents.
If so required by City, Engineer shall assist City
in the completion of all bid and construction documents, including but not limited to, the Notice
Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested
by City), Contract, General Conditions, Supplementary General Conditions, Special Conditions,
DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond,
Escrow Agreement for Security Deposits, and any other certifications and documents required
by federal, state and local laws, rules and regulations which may be reasonably required in
order to obtain bids responsive to the specifications and drawings. All such documents shall be
subject to the approval of City and City’s legal counsel.
6.2 Final Estimate.
At the time of delivery of these bid and construction documents,
which shall include the Final Working Drawings and Specifications (collectively referred to
herein as the “Construction Documents”), Engineer shall provide City with its final estimate of
probable construction cost (“Engineer’s Final Estimate”). As stated above, it shall be the
Engineer’s duty to design the Project within budget.
7. BID PHASE.
During the bid phase of the Project, Engineer shall do all of the following, as well as any
incidental services thereto:
7.1 Reproducible Construction Documents.
Once City provides Engineer with
specific written approval of the Construction Documents and Engineer’s Final Estimate,
Engineer shall provide to City one set of reproducible Construction Documents.
7.2 Distribution of Contract Documents and Review of Bids.
Engineer shall
assist City (at no cost to Engineer) in distributing the Construction Documents to bidders and
conducting the opening and review of bids for the Project.
19
7.3 Overbudget.
If the apparent lowest responsive and responsible bid on the
Project exceeds the Engineer’s Final Estimate by more than five percent (5%), City may request
Engineer to amend, at Engineer’s sole cost and expense, the Final Drawings and Specifications
in order to rebid the Project and receive a lowest responsive and responsible bid equal to or
less than the Engineer’s Final Estimate, unless the City, in its sole discretion, determines that
bids are affected by market factors not within the reasonable control of the Engineer (e.g., labor
or material shortage) and bids are received more than six (6) months following the completion of
the Final Working Drawings and Specifications, as defined herein. All revisions necessary to
bring the lowest responsible and responsive bid within the Engineer’s Final Estimate, including
any omissions, deferrals or alternates, shall be made in consultation with, and subject to the
approval of, the City.
8. CONSTRUCTION PHASE.
During the construction phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
8.1 Observation.
The Project Engineer shall observe work executed from the Final
Working Drawings and Specifications in person, provided that City may, in its discretion,
consent to such observation by another competent representative of Engineer. Engineer
neither shall be responsible for performance of the work observed, nor shall Engineer incur any
liability to any party for observation as required by this paragraph.
8.2 General Administration.
Engineer shall provide general administration of the
Construction Documents and the work performed by the contractors.
8.3 Pre-Construction Meeting.
Engineer shall conduct one or more pre-
construction meetings, as the City determines is needed for the Project, with all interested
parties.
8.4 Site Visits of Contractor’s Work.
Engineer shall conduct site visits to observe
each contractors’ work for general conformance with the Construction Documents and with any
approved construction schedules or milestones. Such site visits shall be conducted as often as
are necessary and appropriate to the stage of construction, according to the City’s sole
discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work.
Engineer shall conduct site visits to
communicate and observe the activities of the City inspectors. Such site visits shall be
conducted as often as is mutually acceptable to Engineer and City. Engineer shall direct the
City inspectors and the Project contractors to coordinate the preparation of record drawings
indicating dimensions and location of all “as-built” conditions, including but not limited to,
underground utility lines.
8.6 Coordination of Engineer’s Consultants.
Engineer shall cause all Engineers,
engineers and other consultants, as may be hired by Engineer or City, to observe the work
completed under their disciplines as required, and approve and review all test results for general
conformance with the Construction Documents.
8.7 Reports.
Engineer shall make regular reports as may be required by applicable
federal, state or local laws, rules or regulations, as well as the federal, state, regional or local
agencies concerned with the Project.
20
8.8 Construction Meetings; Minutes.
Engineer shall attend all construction
meetings and provide written reports/minutes to the City after each construction meeting in
order to keep City informed of the progress of the work. Such meetings shall occur at a
frequency necessary for the progress of the Project work, according to the City’s sole discretion,
but no less than weekly.
8.9 Written Reports.
Engineer shall make written reports to City as necessary to
inform City of problems arising during construction, changes contemplated as a result of each
such problems, and progress of the Project work.
8.10 Written Records.
Engineer shall keep accurate written records of the progress
and quality of the Project work and the time schedules, and shall advise the contractors and City
of any deviations from the time schedule which could delay timely completion of the Project.
8.11 Material and Test Reports.
Engineer shall check and process, in a timely
manner, all required material and test reports for the Project work. In addition, Engineer shall
provide notice of any deficiencies in material or work reflected in such reports, as well as its
recommendation for correction of such deficiencies, to the contractors and City.
8.12 Review and Response to Submissions.
Engineer shall review and respond, in
a timely manner, to all schedules, submittals, shop drawings, samples, information requests,
change requests, and other submissions of the contractor and subcontractors for compliance
with, or alterations and additions to, the Construction Documents. Engineer’s review and
response shall be done in such a manner so as to ensure the timely and uninterrupted progress
of the Project work.
8.13 Rejection of Work.
Engineer shall promptly reject, as discussed with City, work
or materials which do not conform to the Construction Documents. Engineer shall immediately
notify the City and contractor(s) of such rejections. Engineer shall also have the authority to
recommend to the City that additional inspection or testing of the work be performed, whether or
not such work is fabricated, installed or completed.
8.14 Substitutions.
Engineer shall consult with City, in a timely manner, with regard
to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final
written approval of such substitutions. Engineer’s consultation shall be done in such a manner
so as to ensure the timely and uninterrupted progress of the Project work.
8.15 Revised Documents and Drawings.
Engineer shall prepare, at no additional
expense to City, all documents and/or drawings made necessary by Engineer’s errors and
omissions in the originally approved Construction Documents.
8.16 Change Requests and Material Changes.
Engineer shall evaluate and advise
City, in a timely manner and in writing, of any change requests and material change(s) which
may be requested or necessary in the Project plans and specifications. Engineer shall provide
the City with its opinion as to whether such change requests should be approved, denied or
revised. If the City has not hired a construction manager or other person to do so, the Engineer
shall prepare and execute all change orders and submit them to the City for authorization. If the
City has designated a construction manager or other person to prepare all change orders, the
Engineer shall review all change orders prepared by such person, execute them and deliver
them to the City for authorization if they meet with the Engineer’s approval, or submit them to
the City with recommendations for revision or denial if necessary. Engineer shall not order
21
contractors to make any changes affecting the contract price without approval by City of such a
written change order, pursuant to the terms of the Construction Documents. Engineer may
order, on its own responsibility and pending City Council approval, changes necessary to meet
construction emergencies, if written approval of City’s Representative is first secured.
8.17 Applications for Payment.
Engineer shall examine, verify and approve
contractor’s applications for payment, and shall issue certificates for payment in amounts
approved by the City’s inspector.
8.18 Final Color and Product Selection.
Engineer shall coordinate final color and
product selection with City’s original design concept.
8.19 Substantial Completion.
Engineer shall determine the date of substantial
completion, in consultation with the City.
8.20 Punch List.
After determining that the Project is substantially complete,
Engineer shall participate in the inspection of the Project and shall review all remaining
deficiencies and minor items needed to be corrected or completed on the Project, including
those identified on the punch list prepared by the contractor (“Punch List Items”). Engineer shall
notify contractor in writing that all Punch List Items must be corrected prior to final acceptance of
the Project and final payment. Engineer shall also notify City of all Punch List Items.
8.21 Warranties.
Engineer shall review materials assembled by the contractor and
subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction
books, diagrams, record “as built” drawings, and any other materials required from the
contractors and subcontractors pursuant to the Construction Documents. Engineer shall
coordinate and provide these materials to the City.
8.22 Certificate of Completion.
Engineer shall participate in any further inspections
of the Project necessary to issue Engineer’s Certificate of Completion and final certificate for
payment.
8.23 Documents for Project Close-Out.
Engineer shall cause all other Engineers,
engineers and other consultants, as may be hired by Engineer, to file any and all required
documentation with the City or other governmental authorities necessary to close out the
Project. Engineer shall assist the City in obtaining such documentation from all other
Engineers, engineers, or other consultants.
9. RECORD DRAWINGS.
During the record drawings phase of the Project, Engineer shall do all of the following,
as well as any incidental services thereto:
9.1 Record Drawings and Specifications.
Not later than thirty (30) days after
substantial completion of the Project, before receipt of final payment, Engineer shall review and
forward the Final Working Drawings and Specifications, indicating on them all changes made by
change orders or otherwise pursuant to the Construction Documents, as well as all information
called for on the specifications, thus producing an “as-built” set of Final Working Drawings and
Specifications (“Record Drawings and Specifications”). The Record Drawings and
Specifications shall show, among other things, the location of all concealed pipe, buried conduit
runs and other similar elements within the completed Project. Engineer shall personally review
22
and certify that the Record Drawings and Specifications are a correct representation of the
information supplied to Engineer by any inspectors and the contractor. Engineer shall not be
required to verify any information by physical inspection.
9.2 Approval.
Once City provides Engineer with specific written approval of the
Record Drawings and Specifications, Engineer shall forward to City the complete set of original
Record Drawings and Specifications or a complete set of reproducible duplicate Record
Drawings and Specifications. The tracing shall be of such quality that clear and legible prints
may be made without appreciable and objectionable loss of detail.
9.3 Documents for Final Payment.
Prior to the receipt of Engineer’s final payment,
Engineer shall forward to City all of the following: (1) one clear and legible set of reproductions
of the computations; (2) the original copy of the specifications; (3) the Record Drawings and
Specifications as required herein; and (4) Engineer’s Certificate of Completion.
10. WARRANTY PERIOD.
During the warranty period phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
10.1 Advice.
Engineer shall provide advice to City on apparent deficiencies in the
Project during any applicable warranty periods for the Project.
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EXHIBIT “B”
SAMPLE COMPENSATION RATES AND REIMBURSABLE EXPENSES
1. HCR.
OURLY OMPENSATION ATES
CLASSIFICATIONS
HOURLY RATE
Expert Witness/Forensic Engineering $ 325.00
Principal/Partners $ 155.00
Project Manager/Sr. Engineer/Sr. $ 130.00
Designer/Architect
120.00
Designer$
95.00
Senior Drafter/Senior CAD/Senior Administrator $
80.00
Drafter/CAD$
55.00
Clerical $
2.RE.
EIMBURSABLE XPENSES
Travel-Automobile $0.505 per mile
Travel-Other than Automobile Actual Cost + 15%
Printing and Blueprinting Actual Cost + 15%
Materials Testing and In-Plant Inspection Actual Cost + 15%
Aerial Photography Services and Survey Actual Cost + 15%
3.AS.
DDITIONAL ERVICES
Additional Services shall be computed at the actual hourly rates listed above.
4.AC.
DDITIONAL ONSULTANTS
If City requires Engineer to hire consultants to perform any Additional Services, Engineer shall be
compensated therefore at the consultant’s actual hourly rates plus ten percent (10%). Owner shall
have the authority to review and approve the rates of any such consultants.
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EXHIBIT "C"
SAMPLE SCHEDULE OF SERVICES
The term of this Agreement shall be from _______________________ to
_________________, unless earlier terminated as provided in this Agreement.
Consultant shall complete all Services within the term of this Agreement and shall meet
all other established deadlines for each respective scope-of-work tasks as follows:
Scheduled Completion
Task Weeks Following Notice To Proceed
1 – Existing Record/As-Built Review 3
2 – Preliminary Design 8
3 – 50% PS&E Submittal 11
4 – 90% PS&E Submittal 16
5 – 100% PS&E Submittal 19
6 – Assistance During Bid Period 23
7 – Bid Review 24
8 – Construction Support 56
9 – Project Close Out 60
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ATTACHMENT “B”
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL MECHANICAL AND ELECTRICAL SERVICES
1. PARTIES AND DATE.
This Professional Services Agreement (“Agreement”) is made and entered into this
____day of 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 Glumac, with its
th
principal place of business at 617 W. 7 Street, Suite 500, Los Angeles, CA 90017
(“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 Engineering
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 on an On-Call basis to
assist the City with professional mechanical and electrical engineering services as set forth in
this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services.
Consultant’s services shall generally
consist of providing professional on-call mechanical and electrical services on City
assessment/evaluation studies and/or capital improvement projects. A general description of
the Scope of Services of the Consultant are attached hereto as Exhibit “A” and incorporated
herein by this reference. The specific tasks to be provided by the Consultant may vary from
project to project. Each project shall have a specific written Scope of Services agreed upon by
City and Consultant, which shall be incorporated into this Agreement as if originally set forth
herein, and shall replace any and all previous specific written Scope of Service that may have
been previously referenced and incorporated. These tasks shall be as specified in the work
order to be issued by the City to the Consultant prior to starting any call-out work. Work orders
shall be in a written form, except for emergencies, in which case a verbal work order to the
Consultant will suffice, provided that a written confirmation of the verbal work order, and the
26
nature of the emergency that warranted the verbal work order, is provided within two (2)
business days of the emergency verbal work order. 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 Engineeringconsulting services
necessary. 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.
This Agreement shall be effective for a period not to exceed two
(2) years from the date of execution of this Agreement by the Mayor for the City. 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.
3.1.3 On-Call Project Terms.
The execution of this Agreement by the Parties
does not constitute an authorization to proceed. The services of Consultant shall commence
when City, acting by and through its Director of Public Works, has issued a written Authorization
to Proceed. Each project shall have a specific written scope of services and schedule agreed
upon by City and consultant, prior to any Authorization to Proceed. The specific schedule to be
provided by the Consultant may vary from project to project. Each schedule shall be
incorporated into this Agreement as if originally set forth herein, and shall replace any and all
previous schedule(s) that may have been previously referenced and incorporated. The work
shall be completed as described following Consultant’s receipt of the Authorization to Proceed,
exclusive of any review periods required by City. The Consultant shall have no claim for
compensation for any services or work which has not been authorized by City’s Authorization to
Proceed.
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.
For each Call-Out, a project specific Schedule of
Services will be developed similar to that of Exhibit “C” - “Sample Schedule of Services”. City
and Consultant will agree on the tasks, task durations and overall project schedule. Consultant
shall perform the Services expeditiously, within the term of this Agreement, and in accordance
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with the agreed-to project specific Schedule of Services. 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 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 Edwin
,
Lee, P.E. or 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
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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
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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.
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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 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.
Compensation for each On-Call project shall be based on the specific Scope of Services, hourly
rates and manhour requirements negotiated between the City and Consultant and approved by
the Director of Public Works. Extra Work, as defined below, may be authorized as described
below, and if authorized, shall 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.
31
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.
Extra Work shall be compensated at the rates and in the manner set forth in Exhibit “C”
attached hereto and incorporated herein by reference, unless a flat rate or some other form of
compensation is mutually agreed upon by the parties. Consultant shall be paid for Extra Work,
as defined by this Agreement, so long as they have been approved in advance by the City. If
City requires Consultant to hire consultants to perform Extra Work, Consultant shall be
compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto
and incorporated herein by reference, unless a flat rate or some other form of compensation is
mutually agreed upon by the parties. City shall have the authority to review and approve the
rates of any such consultants.
3.3.5 Prevailing Wages.
Consultant is aware of the requirements of California
Labor Code Sections 1720 etseq. and 1770 etseq., as well as California Code of Regulations,
Title 8, Section 16000 etseq. (“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,
32
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:Glumac
th
617 W. 7 Street, Suite 500
Los Angeles, CA 900117
Attn: Edwin Lee, P.E.
Principal
City:City of Downey
Director of Public Works
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:
(213) 239-8816
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
33
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.
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
34
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,
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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.
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SIGNATURE PAGE TO
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
CITY OF DOWNEY Glumac
“CITY” “CONSULTANT”
By: ____________________________ By:
Anne M. Bayer, Mayor
Attest:
__________________________________
Kathleen L. Midstokke, City Clerk
Approved as to Form:
__________________________________
Charles S. Vose, City Attorney
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EXHIBIT “A”
SAMPLE ENGINEER’S SCOPE OF SERVICES BASED ON
REQUEST FOR STATEMENT OF QUALIFICATIONS FOR ENGINEERING
PROFESSIONAL SERVICES NO. 10-01
1. GENERAL REQUIREMENTS.
1.1 Basic Services.
Engineer agrees to perform all the necessary professional
engineering (e.g. mechanical, electrical, plumbing, site engineering, and any other necessary
engineering services) and construction administration services for the Project in a timely and
professional manner, consistent with the standards of the profession, including those provided
for herein.
1.2 Exclusions from Basic Services.
The following services shall be excluded
from the basic services listed above: soils engineering, geotechnical services, hazardous waste
or toxic substance engineering.
1.3 Additional Services.
Engineer shall perform the following Additional Services
for the Project: NOT APPLICABLE
1.4 Communication with City.
Engineer shall participate in consultations and
conferences with authorized representatives of City and/or other local, regional, or state
agencies concerned with the Project, which may be necessary for the completion of the Project
or the development of the drawings, specifications and documents in accordance with the
applicable standards and requirements of law and the City. Such consultations and
conferences shall continue throughout the planning and construction of the Project and the
contractor’s warranty period. Engineer shall take direction only from the City’s Representative,
or any other representative specifically designated by the City for this Project, including any
construction manager hired by the City.
1.5 Coordination and Cooperation with Construction Manager.
The City may
hire a construction manager to administer and coordinate all or any part of the Project on its
behalf. If the City does so, it shall provide a copy of its agreement with the construction
manager so that the Engineer will be fully aware of the duties and responsibilities of the
construction manager. The Engineer shall cooperate with the construction manager and
respond to any requests or directives authorized by the City to be made or given by the
construction manager. The Engineer shall request clarification from the City in writing if the
Engineer should have any questions regarding the authority of the construction manager.
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2. INITIAL PLANNING PHASE.
During the initial planning phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
2.1 Project Feasibility.
Provide advice and assistance to City in determining the
feasibility of the Project, analysis of the type and quality of materials and construction to be
selected, the site location, and other initial planning matters.
2.2 Meeting Budget and Project Goals.
Engineer shall notify City in writing of
potential complications, cost overruns, unusual conditions, and general needs that potentially
impact the Project budget and time line, including the City’s Preliminary Construction Budget.
Engineer shall use its best judgment in determining the balance between the size, type and
quality of construction to achieve a satisfactory solution within the Project’s budget and
construction allowance. It shall be the duty of the Engineer to design the Project within budget.
As discussed below, if the lowest responsive and responsible bid for the Project exceeds the
budget by the specified amount, Engineer may be required to make the necessary changes in
the drawing and specifications, at its sole cost and expense, to bring the bids within the required
budget, unless the City, in its sole discretion, determines that bids are affected by market factors
not within the reasonable control of the Engineer (e.g., labor or material shortage) and bids are
received more than six (6) months following the completion of the Final Working Drawings and
Specifications, as defined herein.
2.3 Permits, Approvals and Authorizations.
As indicated in Section 3.5.4,
Engineer shall assist City in securing easements, encroachment permits, rights of way,
dedications, infrastructures and road improvements, as well as coordinating with utilities and
adjacent property owners.
3. SCHEMATIC PLAN PHASE.
During the schematic plan phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
3.1 Funding Documents.
Engineer shall provide a site plan and all other Project-
related information necessary and required for an application by City to any federal, state,
regional, or local agencies for funds to finance the construction Project.
3.2 Schematic Plans.
In cooperation with City, Engineer shall prepare preliminary
plans and studies, schematic drawings, site utilization plans, and phasing plans showing the
scale and relationship of the components of the Project, the plot plan development at the site,
and the proposed Engineering concept of the buildings (“Schematic Plans”). Engineer shall
incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans
shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall
show all rooms incorporated in each building of the Project in single-line drawings, and shall
include all revisions required by City or by any federal, state, regional or local agency having
jurisdiction over the Project. All Engineering drawings for the Project shall be in a form suitable
for reproduction.
3.3 Preliminary Project Budget.
Engineer shall use the City’s Preliminary
Construction Budget and its own expertise and experience with the Project to establish a
preliminary project budget or allowance in a format required by City (“Engineer’s Preliminary
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Project Budget”). The purpose of the Engineer’s Preliminary Project Budget is to show the
probable Project cost in relation to City’s Preliminary Construction Budget and the construction
standards of any applicable funding agency. If Engineer perceives site considerations which
render the Project expensive or cost prohibitive, Engineer shall disclose such conditions in
writing to City immediately. As stated above, if the lowest responsive and responsible bid for
the Project exceeds the budget by the specified amount, Engineer may be required to make the
necessary changes in the drawings and specifications, at its sole cost and expense, to bring the
bids within the required budget, unless the City, in its sole discretion, determines that bids are
affected by market factors not within the reasonable control of Engineer (e.g. labor or material
shortage) and bids are received more than six (6) months following the completion of the Final
Working Drawings and Specifications, as defined herein. Engineer shall provide a preliminary
written time schedule for the performance of all construction work on the Project.
3.4 Copies of Schematic Plans and Other Documents.
Engineer, at its own
expense, shall provide three (3) complete sets of the Schematic Plans described herein for
City’s review and approval. Additionally, at City’s expense, Engineer shall provide such
documents as may be required by any federal, state, regional or local agencies concerned with
the Project. Any additional copies required by City shall be provided at actual cost to City.
4. DESIGN DEVELOPMENT PHASE.
During the design development phase of the Project, Engineer shall do all of the
following, as well as any incidental services thereto:
4.1 Design Development Documents.
Once City provides Engineer with specific
written approval of the Schematic Plans described herein, Engineer shall prepare design
development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other
drawings and documents sufficient to fix and describe the types and makeup of materials, as
well as the size and character of the Project’s structural, mechanical and electrical systems, and
to outline the Project specifications (“Design Development Documents”). The Design
Development Documents shall be prepared in sufficient form to present to the City Council for
approval.
4.2 Copies of Design Development and Other Documents.
Engineer, at its own
expense, shall provide three (3) complete sets of the Design Development Documents
described herein for City’s review and approval. Additionally, at City’s expense, Engineer shall
provide such documents as may be required by any federal, state, regional or local agencies
concerned with the Project. Any additional copies required by City shall be provided at actual
cost to City.
4.3 Updated Project Budget.
Engineer shall use its Preliminary Project Budget and
expertise and experience with the Project to establish an updated estimate of probable
construction costs, containing detail consistent with the Design Development Documents as set
forth herein and containing a breakdown based on types of materials and specifications
identified herein (“Engineer’s Updated Project Budget”).
4.4 Timetable.
Engineer shall provide a written timetable for full and adequate
completion of the Project to City.
4.5 Application for Approvals.
Engineer shall assist City in applying for and
obtaining required approvals from all federal, state, regional or local agencies concerned with
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the Project. Engineer shall furnish and process all Engineering and engineering information
required to prepare and process applications to applicable utilities in order to secure priorities
and materials, to aid in the construction of the Project and to obtain final Project approval and
acceptance by any of the above agencies as may be required.
4.6 Color and Other Aesthetic Issues.
Engineer shall provide, for City’s review
and approval, a preliminary schedule of all color materials and selections of textures, finishes
and other matters involving an aesthetic decision about the Project.
5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.
During the final working drawings and specifications phase of the Project, Engineer shall
do all of the following, as well as any incidental services thereto:
5.1 Final Working Drawings and Specifications.
Once City provides Engineer
with specific written approval of the Design Development Documents described herein,
Engineer shall prepare such complete working drawings and specifications as are necessary for
developing complete bids and for properly executing the Project work in an efficient and
thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings
and Specifications shall be developed from the Schematic Plans and Design Development
Documents approved by City. The Final Working Drawings and Specifications shall set forth in
detail all of the following: (1) the Project construction work to be done; (2) the materials,
workmanship, finishes, and equipment required for the Engineering, structural, mechanical, and
electrical systems; and (3) the utility service connection equipment and site work. As indicated
in Section 3.9.2, City may be requested to supply Engineer with the necessary information to
determine the proper location of all improvements on and off site, including record drawings
(“record drawings”) in City’s possession. City shall make a good-faith effort to verify the
accuracy of the record drawings and provide any supplemental information to Engineer which
may not be shown on the record drawings.
5.2 Form.
The Final Working Drawings and Specifications must be in such form as
will enable Engineer and City to secure the required permits and approvals from all federal,
state, regional or local agencies concerned with the Project. In addition, the Final Working
Drawings and Specifications must be in such form as will enable City to obtain, by competitive
bidding, a responsible and responsive bid within the applicable budgetary limitations and cost
standards. The Final Working Drawings and Specifications shall be clear and legible so that
uniform copies may be on standard Engineering size paper, properly indexed and numbered,
and shall be capable of being clearly copied and assembled in a professional manner by
Engineer.
5.3 Approval and Revisions.
City shall review, study, and check the Final Working
Drawings and Specifications presented to it by Engineer, and request any necessary revisions
or obtain any necessary approvals by the City Council, subject to the approval of all federal,
state, regional or local agencies concerned with the Project. Engineer shall make all City-
requested changes, additions, deletions, and corrections in the Final Working Drawings and
Specifications at no additional cost, so long as they are not in conflict with the requirements of
public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or
Engineer’s professional judgment. Engineer shall bring any such conflicts and/or
inconsistencies to the attention of City. The parties agree that Engineer, and not the City,
possesses the requisite expertise to determine the constructability of the Final Working
Drawings and Specifications. However, the City reserves the right to conduct one or more
41
constructability review processes of the Final Working Drawings and Specifications at 75% to
90% completion levels with the assistance of the Engineer, its engineers and consultants, and
to hire an independent Engineer or other consultant to perform such reviews at 90% to 100%
completion level. Any such independent constructability review shall be at City’s expense.
Engineer shall make all City-requested changes, additions, deletions, and corrections in the
Final Working Drawings and Specifications which may result from any constructability review, at
no additional cost to the City, so long as they are not in conflict with the requirements of public
agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or
Engineer’s professional judgment. If such changes, additions, deletions or corrections are
inconsistent with prior City direction, Engineer shall make such alterations and be compensated
therefore pursuant to the Additional Services provision of this Agreement.
5.4 Costs of Construction.
It is understood by Engineer that should the Final
Working Drawings and Specifications be ordered by City, City shall specify the sum of money
set aside to cover the total cost of construction of the work, exclusive of Engineer’s fees.
Should it become evident that the total construction cost will exceed the specified sum,
Engineer shall at once present a statement in writing to the City’s Representative setting forth
this fact and giving a full statement of the cost estimates on which the conclusion is based.
5.5 Copies of Final Working Drawings and Specifications and Other
Documents.
Engineer, at its own expense, shall provide five (5) complete sets of the Final
Working Drawings and Specifications described herein for City’s review and approval.
Additionally, at City’s expense, Engineer shall provide such documents as may be required by
any federal, state, regional or local agencies concerned with the Project. Any additional copies
required by City shall be provided at actual cost to City.
6. CONSTRUCTION CONTRACT DOCUMENTS.
During the construction contract documents phase of the Project, Engineer shall do all of
the following, as well as any incidental services thereto:
6.1 Bid and Contract Documents.
If so required by City, Engineer shall assist City
in the completion of all bid and construction documents, including but not limited to, the Notice
Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested
by City), Contract, General Conditions, Supplementary General Conditions, Special Conditions,
DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond,
Escrow Agreement for Security Deposits, and any other certifications and documents required
by federal, state and local laws, rules and regulations which may be reasonably required in
order to obtain bids responsive to the specifications and drawings. All such documents shall be
subject to the approval of City and City’s legal counsel.
6.2 Final Estimate.
At the time of delivery of these bid and construction documents,
which shall include the Final Working Drawings and Specifications (collectively referred to
herein as the “Construction Documents”), Engineer shall provide City with its final estimate of
probable construction cost (“Engineer’s Final Estimate”). As stated above, it shall be the
Engineer’s duty to design the Project within budget.
7. BID PHASE.
During the bid phase of the Project, Engineer shall do all of the following, as well as any
incidental services thereto:
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7.1 Reproducible Construction Documents.
Once City provides Engineer with
specific written approval of the Construction Documents and Engineer’s Final Estimate,
Engineer shall provide to City one set of reproducible Construction Documents.
7.2 Distribution of Contract Documents and Review of Bids.
Engineer shall
assist City (at no cost to Engineer) in distributing the Construction Documents to bidders and
conducting the opening and review of bids for the Project.
7.3 Overbudget.
If the apparent lowest responsive and responsible bid on the
Project exceeds the Engineer’s Final Estimate by more than five percent (5%), City may request
Engineer to amend, at Engineer’s sole cost and expense, the Final Drawings and Specifications
in order to rebid the Project and receive a lowest responsive and responsible bid equal to or
less than the Engineer’s Final Estimate, unless the City, in its sole discretion, determines that
bids are affected by market factors not within the reasonable control of the Engineer (e.g., labor
or material shortage) and bids are received more than six (6) months following the completion of
the Final Working Drawings and Specifications, as defined herein. All revisions necessary to
bring the lowest responsible and responsive bid within the Engineer’s Final Estimate, including
any omissions, deferrals or alternates, shall be made in consultation with, and subject to the
approval of, the City.
8. CONSTRUCTION PHASE.
During the construction phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
8.1 Observation.
The Project Engineer shall observe work executed from the Final
Working Drawings and Specifications in person, provided that City may, in its discretion,
consent to such observation by another competent representative of Engineer. Engineer
neither shall be responsible for performance of the work observed, nor shall Engineer incur any
liability to any party for observation as required by this paragraph.
8.2 General Administration.
Engineer shall provide general administration of the
Construction Documents and the work performed by the contractors.
8.3 Pre-Construction Meeting.
Engineer shall conduct one or more pre-
construction meetings, as the City determines is needed for the Project, with all interested
parties.
8.4 Site Visits of Contractor’s Work.
Engineer shall conduct site visits to observe
each contractors’ work for general conformance with the Construction Documents and with any
approved construction schedules or milestones. Such site visits shall be conducted as often as
are necessary and appropriate to the stage of construction, according to the City’s sole
discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work.
Engineer shall conduct site visits to
communicate and observe the activities of the City inspectors. Such site visits shall be
conducted as often as is mutually acceptable to Engineer and City. Engineer shall direct the
City inspectors and the Project contractors to coordinate the preparation of record drawings
indicating dimensions and location of all “as-built” conditions, including but not limited to,
underground utility lines.
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8.6 Coordination of Engineer’s Consultants.
Engineer shall cause all Engineers,
engineers and other consultants, as may be hired by Engineer or City, to observe the work
completed under their disciplines as required, and approve and review all test results for general
conformance with the Construction Documents.
8.7 Reports.
Engineer shall make regular reports as may be required by applicable
federal, state or local laws, rules or regulations, as well as the federal, state, regional or local
agencies concerned with the Project.
8.8 Construction Meetings; Minutes.
Engineer shall attend all construction
meetings and provide written reports/minutes to the City after each construction meeting in
order to keep City informed of the progress of the work. Such meetings shall occur at a
frequency necessary for the progress of the Project work, according to the City’s sole discretion,
but no less than weekly.
8.9 Written Reports.
Engineer shall make written reports to City as necessary to
inform City of problems arising during construction, changes contemplated as a result of each
such problems, and progress of the Project work.
8.10 Written Records.
Engineer shall keep accurate written records of the progress
and quality of the Project work and the time schedules, and shall advise the contractors and City
of any deviations from the time schedule which could delay timely completion of the Project.
8.11 Material and Test Reports.
Engineer shall check and process, in a timely
manner, all required material and test reports for the Project work. In addition, Engineer shall
provide notice of any deficiencies in material or work reflected in such reports, as well as its
recommendation for correction of such deficiencies, to the contractors and City.
8.12 Review and Response to Submissions.
Engineer shall review and respond, in
a timely manner, to all schedules, submittals, shop drawings, samples, information requests,
change requests, and other submissions of the contractor and subcontractors for compliance
with, or alterations and additions to, the Construction Documents. Engineer’s review and
response shall be done in such a manner so as to ensure the timely and uninterrupted progress
of the Project work.
8.13 Rejection of Work.
Engineer shall promptly reject, as discussed with City, work
or materials which do not conform to the Construction Documents. Engineer shall immediately
notify the City and contractor(s) of such rejections. Engineer shall also have the authority to
recommend to the City that additional inspection or testing of the work be performed, whether or
not such work is fabricated, installed or completed.
8.14 Substitutions.
Engineer shall consult with City, in a timely manner, with regard
to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final
written approval of such substitutions. Engineer’s consultation shall be done in such a manner
so as to ensure the timely and uninterrupted progress of the Project work.
8.15 Revised Documents and Drawings.
Engineer shall prepare, at no additional
expense to City, all documents and/or drawings made necessary by Engineer’s errors and
omissions in the originally approved Construction Documents.
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8.16 Change Requests and Material Changes.
Engineer shall evaluate and advise
City, in a timely manner and in writing, of any change requests and material change(s) which
may be requested or necessary in the Project plans and specifications. Engineer shall provide
the City with its opinion as to whether such change requests should be approved, denied or
revised. If the City has not hired a construction manager or other person to do so, the Engineer
shall prepare and execute all change orders and submit them to the City for authorization. If the
City has designated a construction manager or other person to prepare all change orders, the
Engineer shall review all change orders prepared by such person, execute them and deliver
them to the City for authorization if they meet with the Engineer’s approval, or submit them to
the City with recommendations for revision or denial if necessary. Engineer shall not order
contractors to make any changes affecting the contract price without approval by City of such a
written change order, pursuant to the terms of the Construction Documents. Engineer may
order, on its own responsibility and pending City Council approval, changes necessary to meet
construction emergencies, if written approval of City’s Representative is first secured.
8.17 Applications for Payment.
Engineer shall examine, verify and approve
contractor’s applications for payment, and shall issue certificates for payment in amounts
approved by the City’s inspector.
8.18 Final Color and Product Selection.
Engineer shall coordinate final color and
product selection with City’s original design concept.
8.19 Substantial Completion.
Engineer shall determine the date of substantial
completion, in consultation with the City.
8.20 Punch List.
After determining that the Project is substantially complete,
Engineer shall participate in the inspection of the Project and shall review all remaining
deficiencies and minor items needed to be corrected or completed on the Project, including
those identified on the punch list prepared by the contractor (“Punch List Items”). Engineer shall
notify contractor in writing that all Punch List Items must be corrected prior to final acceptance of
the Project and final payment. Engineer shall also notify City of all Punch List Items.
8.21 Warranties.
Engineer shall review materials assembled by the contractor and
subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction
books, diagrams, record “as built” drawings, and any other materials required from the
contractors and subcontractors pursuant to the Construction Documents. Engineer shall
coordinate and provide these materials to the City.
8.22 Certificate of Completion.
Engineer shall participate in any further inspections
of the Project necessary to issue Engineer’s Certificate of Completion and final certificate for
payment.
8.23 Documents for Project Close-Out.
Engineer shall cause all other Engineers,
engineers and other consultants, as may be hired by Engineer, to file any and all required
documentation with the City or other governmental authorities necessary to close out the
Project. Engineer shall assist the City in obtaining such documentation from all other
Engineers, engineers, or other consultants.
9. RECORD DRAWINGS.
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During the record drawings phase of the Project, Engineer shall do all of the following,
as well as any incidental services thereto:
9.1 Record Drawings and Specifications.
Not later than thirty (30) days after
substantial completion of the Project, before receipt of final payment, Engineer shall review and
forward the Final Working Drawings and Specifications, indicating on them all changes made by
change orders or otherwise pursuant to the Construction Documents, as well as all information
called for on the specifications, thus producing an “as-built” set of Final Working Drawings and
Specifications (“Record Drawings and Specifications”). The Record Drawings and
Specifications shall show, among other things, the location of all concealed pipe, buried conduit
runs and other similar elements within the completed Project. Engineer shall personally review
and certify that the Record Drawings and Specifications are a correct representation of the
information supplied to Engineer by any inspectors and the contractor. Engineer shall not be
required to verify any information by physical inspection.
9.2 Approval.
Once City provides Engineer with specific written approval of the
Record Drawings and Specifications, Engineer shall forward to City the complete set of original
Record Drawings and Specifications or a complete set of reproducible duplicate Record
Drawings and Specifications. The tracing shall be of such quality that clear and legible prints
may be made without appreciable and objectionable loss of detail.
9.3 Documents for Final Payment.
Prior to the receipt of Engineer’s final payment,
Engineer shall forward to City all of the following: (1) one clear and legible set of reproductions
of the computations; (2) the original copy of the specifications; (3) the Record Drawings and
Specifications as required herein; and (4) Engineer’s Certificate of Completion.
10. WARRANTY PERIOD.
During the warranty period phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
10.1 Advice.
Engineer shall provide advice to City on apparent deficiencies in the
Project during any applicable warranty periods for the Project.
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EXHIBIT “B”
SAMPLE COMPENSATION RATES AND REIMBURSABLE EXPENSES
2. HCR.
OURLY OMPENSATION ATES
CLASSIFICATIONS
HOURLY RATE
Principal $ 200.00
Associate Principal $ 180.00
Sr. Project Manager $ 170.00
Project Manager $ 160.00
Sr. Project Engineer $ 145.00
Project Engineer $ 125.00
Sr. Design Engineer $ 110.00
Design Engineer $ 100.00
Sr. Designer $ 90.00
Designer$ 80.00
CAD Designer $ 75.00
CAD Technician $ 55.00
Administrative$ 50.00
Word Processor $ 40.00
2.RE.
EIMBURSABLE XPENSES
Drawing Plots & Prints (Color/Bond) At Cost (prevailing printer rates)
Travel, Lodging, Transportation At Cost
Printing, Reproduction, Photography At Cost
Mileage At prevailing IRS Rate/Mile
Carbon Footprint Surcharge (on all expenses) 10%
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3.AS.
DDITIONAL ERVICES
Additional Services shall be computed at the actual hourly rates listed above.
4.AC.
DDITIONAL ONSULTANTS
If City requires Engineer to hire consultants to perform any Additional Services, Engineer shall be
compensated therefore at the consultant’s actual hourly rates plus ten percent (10%). Owner shall
have the authority to review and approve the rates of any such consultants.
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EXHIBIT "C"
SAMPLE SCHEDULE OF SERVICES
The term of this Agreement shall be from _______________________ to
_________________, unless earlier terminated as provided in this Agreement.
Consultant shall complete all Services within the term of this Agreement and shall meet
all other established deadlines for each respective scope-of-work tasks as follows:
Scheduled Completion
Task Weeks Following Notice To Proceed
1 – Existing Record/As-Built Review 3
2 – Preliminary Design 8
3 – 50% PS&E Submittal 11
4 – 90% PS&E Submittal 16
5 – 100% PS&E Submittal 19
6 – Assistance During Bid Period 23
7 – Bid Review 24
8 – Construction Support 56
9 – Project Close Out 60
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ATTACHMENT “C”
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL MECHANICAL AND ELECTRICAL SERVICES
1. PARTIES AND DATE.
This Professional Services Agreement (“Agreement”) is made and entered into this
day of _______ 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 IDS Group, with its principal place of
business at 1 Peters Canyon Road, Suite 130, Irvine, CA 92606 (“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 Engineering
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 on an On-Call basis to
assist the City with professional mechanical and electrical engineering services as set forth in
this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services.
Consultant’s services shall generally
consist of providing professional on-call mechanical and electrical services on City
assessment/evaluation studies and/or capital improvement projects. A general description of
the Scope of Services of the Consultant are attached hereto as Exhibit “A” and incorporated
herein by this reference. The specific tasks to be provided by the Consultant may vary from
project to project. Each project shall have a specific written Scope of Services agreed upon by
City and Consultant, which shall be incorporated into this Agreement as if originally set forth
herein, and shall replace any and all previous specific written Scope of Service that may have
been previously referenced and incorporated. These tasks shall be as specified in the work
order to be issued by the City to the Consultant prior to starting any call-out work. Work orders
shall be in a written form, except for emergencies, in which case a verbal work order to the
Consultant will suffice, provided that a written confirmation of the verbal work order, and the
nature of the emergency that warranted the verbal work order, is provided within two (2)
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business days of the emergency verbal work order. 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 Engineeringconsulting services
necessary. 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.
This Agreement shall be effective for a period not to exceed two
(2) years from the date of execution of this Agreement by the Mayor for the City. 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.
3.1.3 On-Call Project Terms.
The execution of this Agreement by the Parties
does not constitute an authorization to proceed. The services of Consultant shall commence
when City, acting by and through its Director of Public Works, has issued a written Authorization
to Proceed. Each project shall have a specific written scope of services and schedule agreed
upon by City and consultant, prior to any Authorization to Proceed. The specific schedule to be
provided by the Consultant may vary from project to project. Each schedule shall be
incorporated into this Agreement as if originally set forth herein, and shall replace any and all
previous schedule(s) that may have been previously referenced and incorporated. The work
shall be completed as described following Consultant’s receipt of the Authorization to Proceed,
exclusive of any review periods required by City. The Consultant shall have no claim for
compensation for any services or work which has not been authorized by City’s Authorization to
Proceed.
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.
For each Call-Out, a project specific Schedule of
Services will be developed similar to that of Exhibit “C” - “Sample Schedule of Services”. City
and Consultant will agree on the tasks, task durations and overall project schedule. Consultant
shall perform the Services expeditiously, within the term of this Agreement, and in accordance
with the agreed-to project specific Schedule of Services. Consultant represents and warrants
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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 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 Ray
,
Cranston, P.E. or 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
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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
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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.
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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 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.
Compensation for each On-Call project shall be based on the specific Scope of Services, hourly
rates and manhour requirements negotiated between the City and Consultant and approved by
the Director of Public Works. Extra Work, as defined below, may be authorized as described
below, and if authorized, shall 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.
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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.
Extra Work shall be compensated at the rates and in the manner set forth in Exhibit “C”
attached hereto and incorporated herein by reference, unless a flat rate or some other form of
compensation is mutually agreed upon by the parties. Consultant shall be paid for Extra Work,
as defined by this Agreement, so long as they have been approved in advance by the City. If
City requires Consultant to hire consultants to perform Extra Work, Consultant shall be
compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto
and incorporated herein by reference, unless a flat rate or some other form of compensation is
mutually agreed upon by the parties. City shall have the authority to review and approve the
rates of any such consultants.
3.3.5 Prevailing Wages.
Consultant is aware of the requirements of California
Labor Code Sections 1720 etseq. and 1770 etseq., as well as California Code of Regulations,
Title 8, Section 16000 etseq. (“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,
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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: IDS Group
1 Peters Canyon Road, Suite 13
Irvine, CA 92606
Attn: Ray Cranston, P.E.
Principal
City:City of Downey
Director of Public Works
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:
(949) 387-0800
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
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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.
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
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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.
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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.
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SIGNATURE PAGE TO
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
CITY OF DOWNEY IDS Group
“CITY” “CONSULTANT”
By: ____________________________ By:
Anne M. Bayer, Mayor
Attest:
__________________________________
Kathleen L. Midstokke, City Clerk
Approved as to Form:
__________________________________
Charles S. Vose, City Attorney
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EXHIBIT “A”
SAMPLE ENGINEER’S SCOPE OF SERVICES BASED ON
REQUEST FOR STATEMENT OF QUALIFICATIONS FOR ENGINEERING
PROFESSIONAL SERVICES NO. 10-01
1. GENERAL REQUIREMENTS.
1.1 Basic Services.
Engineer agrees to perform all the necessary professional
engineering (e.g. mechanical, electrical, plumbing, site engineering, and any other necessary
engineering services) and construction administration services for the Project in a timely and
professional manner, consistent with the standards of the profession, including those provided
for herein.
1.2 Exclusions from Basic Services.
The following services shall be excluded
from the basic services listed above: soils engineering, geotechnical services, hazardous waste
or toxic substance engineering.
1.3 Additional Services.
Engineer shall perform the following Additional Services
for the Project: NOT APPLICABLE
1.4 Communication with City.
Engineer shall participate in consultations and
conferences with authorized representatives of City and/or other local, regional, or state
agencies concerned with the Project, which may be necessary for the completion of the Project
or the development of the drawings, specifications and documents in accordance with the
applicable standards and requirements of law and the City. Such consultations and
conferences shall continue throughout the planning and construction of the Project and the
contractor’s warranty period. Engineer shall take direction only from the City’s Representative,
or any other representative specifically designated by the City for this Project, including any
construction manager hired by the City.
1.5 Coordination and Cooperation with Construction Manager.
The City may
hire a construction manager to administer and coordinate all or any part of the Project on its
behalf. If the City does so, it shall provide a copy of its agreement with the construction
manager so that the Engineer will be fully aware of the duties and responsibilities of the
construction manager. The Engineer shall cooperate with the construction manager and
respond to any requests or directives authorized by the City to be made or given by the
construction manager. The Engineer shall request clarification from the City in writing if the
Engineer should have any questions regarding the authority of the construction manager.
2. INITIAL PLANNING PHASE.
During the initial planning phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
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2.1 Project Feasibility.
Provide advice and assistance to City in determining the
feasibility of the Project, analysis of the type and quality of materials and construction to be
selected, the site location, and other initial planning matters.
2.2 Meeting Budget and Project Goals.
Engineer shall notify City in writing of
potential complications, cost overruns, unusual conditions, and general needs that potentially
impact the Project budget and time line, including the City’s Preliminary Construction Budget.
Engineer shall use its best judgment in determining the balance between the size, type and
quality of construction to achieve a satisfactory solution within the Project’s budget and
construction allowance. It shall be the duty of the Engineer to design the Project within budget.
As discussed below, if the lowest responsive and responsible bid for the Project exceeds the
budget by the specified amount, Engineer may be required to make the necessary changes in
the drawing and specifications, at its sole cost and expense, to bring the bids within the required
budget, unless the City, in its sole discretion, determines that bids are affected by market factors
not within the reasonable control of the Engineer (e.g., labor or material shortage) and bids are
received more than six (6) months following the completion of the Final Working Drawings and
Specifications, as defined herein.
2.3 Permits, Approvals and Authorizations.
As indicated in Section 3.5.4,
Engineer shall assist City in securing easements, encroachment permits, rights of way,
dedications, infrastructures and road improvements, as well as coordinating with utilities and
adjacent property owners.
3. SCHEMATIC PLAN PHASE.
During the schematic plan phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
3.1 Funding Documents.
Engineer shall provide a site plan and all other Project-
related information necessary and required for an application by City to any federal, state,
regional, or local agencies for funds to finance the construction Project.
3.2 Schematic Plans.
In cooperation with City, Engineer shall prepare preliminary
plans and studies, schematic drawings, site utilization plans, and phasing plans showing the
scale and relationship of the components of the Project, the plot plan development at the site,
and the proposed Engineering concept of the buildings (“Schematic Plans”). Engineer shall
incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans
shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall
show all rooms incorporated in each building of the Project in single-line drawings, and shall
include all revisions required by City or by any federal, state, regional or local agency having
jurisdiction over the Project. All Engineering drawings for the Project shall be in a form suitable
for reproduction.
3.3 Preliminary Project Budget.
Engineer shall use the City’s Preliminary
Construction Budget and its own expertise and experience with the Project to establish a
preliminary project budget or allowance in a format required by City (“Engineer’s Preliminary
Project Budget”). The purpose of the Engineer’s Preliminary Project Budget is to show the
probable Project cost in relation to City’s Preliminary Construction Budget and the construction
standards of any applicable funding agency. If Engineer perceives site considerations which
render the Project expensive or cost prohibitive, Engineer shall disclose such conditions in
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writing to City immediately. As stated above, if the lowest responsive and responsible bid for
the Project exceeds the budget by the specified amount, Engineer may be required to make the
necessary changes in the drawings and specifications, at its sole cost and expense, to bring the
bids within the required budget, unless the City, in its sole discretion, determines that bids are
affected by market factors not within the reasonable control of Engineer (e.g. labor or material
shortage) and bids are received more than six (6) months following the completion of the Final
Working Drawings and Specifications, as defined herein. Engineer shall provide a preliminary
written time schedule for the performance of all construction work on the Project.
3.4 Copies of Schematic Plans and Other Documents.
Engineer, at its own
expense, shall provide three (3) complete sets of the Schematic Plans described herein for
City’s review and approval. Additionally, at City’s expense, Engineer shall provide such
documents as may be required by any federal, state, regional or local agencies concerned with
the Project. Any additional copies required by City shall be provided at actual cost to City.
4. DESIGN DEVELOPMENT PHASE.
During the design development phase of the Project, Engineer shall do all of the
following, as well as any incidental services thereto:
4.1 Design Development Documents.
Once City provides Engineer with specific
written approval of the Schematic Plans described herein, Engineer shall prepare design
development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other
drawings and documents sufficient to fix and describe the types and makeup of materials, as
well as the size and character of the Project’s structural, mechanical and electrical systems, and
to outline the Project specifications (“Design Development Documents”). The Design
Development Documents shall be prepared in sufficient form to present to the City Council for
approval.
4.2 Copies of Design Development and Other Documents.
Engineer, at its own
expense, shall provide three (3) complete sets of the Design Development Documents
described herein for City’s review and approval. Additionally, at City’s expense, Engineer shall
provide such documents as may be required by any federal, state, regional or local agencies
concerned with the Project. Any additional copies required by City shall be provided at actual
cost to City.
4.3 Updated Project Budget.
Engineer shall use its Preliminary Project Budget and
expertise and experience with the Project to establish an updated estimate of probable
construction costs, containing detail consistent with the Design Development Documents as set
forth herein and containing a breakdown based on types of materials and specifications
identified herein (“Engineer’s Updated Project Budget”).
4.4 Timetable.
Engineer shall provide a written timetable for full and adequate
completion of the Project to City.
4.5 Application for Approvals.
Engineer shall assist City in applying for and
obtaining required approvals from all federal, state, regional or local agencies concerned with
the Project. Engineer shall furnish and process all Engineering and engineering information
required to prepare and process applications to applicable utilities in order to secure priorities
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and materials, to aid in the construction of the Project and to obtain final Project approval and
acceptance by any of the above agencies as may be required.
4.6 Color and Other Aesthetic Issues.
Engineer shall provide, for City’s review
and approval, a preliminary schedule of all color materials and selections of textures, finishes
and other matters involving an aesthetic decision about the Project.
5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.
During the final working drawings and specifications phase of the Project, Engineer shall
do all of the following, as well as any incidental services thereto:
5.1 Final Working Drawings and Specifications.
Once City provides Engineer
with specific written approval of the Design Development Documents described herein,
Engineer shall prepare such complete working drawings and specifications as are necessary for
developing complete bids and for properly executing the Project work in an efficient and
thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings
and Specifications shall be developed from the Schematic Plans and Design Development
Documents approved by City. The Final Working Drawings and Specifications shall set forth in
detail all of the following: (1) the Project construction work to be done; (2) the materials,
workmanship, finishes, and equipment required for the Engineering, structural, mechanical, and
electrical systems; and (3) the utility service connection equipment and site work. As indicated
in Section 3.9.2, City may be requested to supply Engineer with the necessary information to
determine the proper location of all improvements on and off site, including record drawings
(“record drawings”) in City’s possession. City shall make a good-faith effort to verify the
accuracy of the record drawings and provide any supplemental information to Engineer which
may not be shown on the record drawings.
5.2 Form.
The Final Working Drawings and Specifications must be in such form as
will enable Engineer and City to secure the required permits and approvals from all federal,
state, regional or local agencies concerned with the Project. In addition, the Final Working
Drawings and Specifications must be in such form as will enable City to obtain, by competitive
bidding, a responsible and responsive bid within the applicable budgetary limitations and cost
standards. The Final Working Drawings and Specifications shall be clear and legible so that
uniform copies may be on standard Engineering size paper, properly indexed and numbered,
and shall be capable of being clearly copied and assembled in a professional manner by
Engineer.
5.3 Approval and Revisions.
City shall review, study, and check the Final Working
Drawings and Specifications presented to it by Engineer, and request any necessary revisions
or obtain any necessary approvals by the City Council, subject to the approval of all federal,
state, regional or local agencies concerned with the Project. Engineer shall make all City-
requested changes, additions, deletions, and corrections in the Final Working Drawings and
Specifications at no additional cost, so long as they are not in conflict with the requirements of
public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or
Engineer’s professional judgment. Engineer shall bring any such conflicts and/or
inconsistencies to the attention of City. The parties agree that Engineer, and not the City,
possesses the requisite expertise to determine the constructability of the Final Working
Drawings and Specifications. However, the City reserves the right to conduct one or more
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constructability review processes of the Final Working Drawings and Specifications at 75% to
90% completion levels with the assistance of the Engineer, its engineers and consultants, and
to hire an independent Engineer or other consultant to perform such reviews at 90% to 100%
completion level. Any such independent constructability review shall be at City’s expense.
Engineer shall make all City-requested changes, additions, deletions, and corrections in the
Final Working Drawings and Specifications which may result from any constructability review, at
no additional cost to the City, so long as they are not in conflict with the requirements of public
agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or
Engineer’s professional judgment. If such changes, additions, deletions or corrections are
inconsistent with prior City direction, Engineer shall make such alterations and be compensated
therefore pursuant to the Additional Services provision of this Agreement.
5.4 Costs of Construction.
It is understood by Engineer that should the Final
Working Drawings and Specifications be ordered by City, City shall specify the sum of money
set aside to cover the total cost of construction of the work, exclusive of Engineer’s fees.
Should it become evident that the total construction cost will exceed the specified sum,
Engineer shall at once present a statement in writing to the City’s Representative setting forth
this fact and giving a full statement of the cost estimates on which the conclusion is based.
5.5 Copies of Final Working Drawings and Specifications and Other
Documents.
Engineer, at its own expense, shall provide five (5) complete sets of the Final
Working Drawings and Specifications described herein for City’s review and approval.
Additionally, at City’s expense, Engineer shall provide such documents as may be required by
any federal, state, regional or local agencies concerned with the Project. Any additional copies
required by City shall be provided at actual cost to City.
6. CONSTRUCTION CONTRACT DOCUMENTS.
During the construction contract documents phase of the Project, Engineer shall do all of
the following, as well as any incidental services thereto:
6.1 Bid and Contract Documents.
If so required by City, Engineer shall assist City
in the completion of all bid and construction documents, including but not limited to, the Notice
Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested
by City), Contract, General Conditions, Supplementary General Conditions, Special Conditions,
DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond,
Escrow Agreement for Security Deposits, and any other certifications and documents required
by federal, state and local laws, rules and regulations which may be reasonably required in
order to obtain bids responsive to the specifications and drawings. All such documents shall be
subject to the approval of City and City’s legal counsel.
6.2 Final Estimate.
At the time of delivery of these bid and construction documents,
which shall include the Final Working Drawings and Specifications (collectively referred to
herein as the “Construction Documents”), Engineer shall provide City with its final estimate of
probable construction cost (“Engineer’s Final Estimate”). As stated above, it shall be the
Engineer’s duty to design the Project within budget.
7. BID PHASE.
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During the bid phase of the Project, Engineer shall do all of the following, as well as any
incidental services thereto:
7.1 Reproducible Construction Documents.
Once City provides Engineer with
specific written approval of the Construction Documents and Engineer’s Final Estimate,
Engineer shall provide to City one set of reproducible Construction Documents.
7.2 Distribution of Contract Documents and Review of Bids.
Engineer shall
assist City (at no cost to Engineer) in distributing the Construction Documents to bidders and
conducting the opening and review of bids for the Project.
7.3 Overbudget.
If the apparent lowest responsive and responsible bid on the
Project exceeds the Engineer’s Final Estimate by more than five percent (5%), City may request
Engineer to amend, at Engineer’s sole cost and expense, the Final Drawings and Specifications
in order to rebid the Project and receive a lowest responsive and responsible bid equal to or
less than the Engineer’s Final Estimate, unless the City, in its sole discretion, determines that
bids are affected by market factors not within the reasonable control of the Engineer (e.g., labor
or material shortage) and bids are received more than six (6) months following the completion of
the Final Working Drawings and Specifications, as defined herein. All revisions necessary to
bring the lowest responsible and responsive bid within the Engineer’s Final Estimate, including
any omissions, deferrals or alternates, shall be made in consultation with, and subject to the
approval of, the City.
8. CONSTRUCTION PHASE.
During the construction phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
8.1 Observation.
The Project Engineer shall observe work executed from the Final
Working Drawings and Specifications in person, provided that City may, in its discretion,
consent to such observation by another competent representative of Engineer. Engineer
neither shall be responsible for performance of the work observed, nor shall Engineer incur any
liability to any party for observation as required by this paragraph.
8.2 General Administration.
Engineer shall provide general administration of the
Construction Documents and the work performed by the contractors.
8.3 Pre-Construction Meeting.
Engineer shall conduct one or more pre-
construction meetings, as the City determines is needed for the Project, with all interested
parties.
8.4 Site Visits of Contractor’s Work.
Engineer shall conduct site visits to observe
each contractors’ work for general conformance with the Construction Documents and with any
approved construction schedules or milestones. Such site visits shall be conducted as often as
are necessary and appropriate to the stage of construction, according to the City’s sole
discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work.
Engineer shall conduct site visits to
communicate and observe the activities of the City inspectors. Such site visits shall be
conducted as often as is mutually acceptable to Engineer and City. Engineer shall direct the
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City inspectors and the Project contractors to coordinate the preparation of record drawings
indicating dimensions and location of all “as-built” conditions, including but not limited to,
underground utility lines.
8.6 Coordination of Engineer’s Consultants.
Engineer shall cause all Engineers,
engineers and other consultants, as may be hired by Engineer or City, to observe the work
completed under their disciplines as required, and approve and review all test results for general
conformance with the Construction Documents.
8.7 Reports.
Engineer shall make regular reports as may be required by applicable
federal, state or local laws, rules or regulations, as well as the federal, state, regional or local
agencies concerned with the Project.
8.8 Construction Meetings; Minutes.
Engineer shall attend all construction
meetings and provide written reports/minutes to the City after each construction meeting in
order to keep City informed of the progress of the work. Such meetings shall occur at a
frequency necessary for the progress of the Project work, according to the City’s sole discretion,
but no less than weekly.
8.9 Written Reports.
Engineer shall make written reports to City as necessary to
inform City of problems arising during construction, changes contemplated as a result of each
such problems, and progress of the Project work.
8.10 Written Records.
Engineer shall keep accurate written records of the progress
and quality of the Project work and the time schedules, and shall advise the contractors and City
of any deviations from the time schedule which could delay timely completion of the Project.
8.11 Material and Test Reports.
Engineer shall check and process, in a timely
manner, all required material and test reports for the Project work. In addition, Engineer shall
provide notice of any deficiencies in material or work reflected in such reports, as well as its
recommendation for correction of such deficiencies, to the contractors and City.
8.12 Review and Response to Submissions.
Engineer shall review and respond, in
a timely manner, to all schedules, submittals, shop drawings, samples, information requests,
change requests, and other submissions of the contractor and subcontractors for compliance
with, or alterations and additions to, the Construction Documents. Engineer’s review and
response shall be done in such a manner so as to ensure the timely and uninterrupted progress
of the Project work.
8.13 Rejection of Work.
Engineer shall promptly reject, as discussed with City, work
or materials which do not conform to the Construction Documents. Engineer shall immediately
notify the City and contractor(s) of such rejections. Engineer shall also have the authority to
recommend to the City that additional inspection or testing of the work be performed, whether or
not such work is fabricated, installed or completed.
8.14 Substitutions.
Engineer shall consult with City, in a timely manner, with regard
to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final
written approval of such substitutions. Engineer’s consultation shall be done in such a manner
so as to ensure the timely and uninterrupted progress of the Project work.
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8.15 Revised Documents and Drawings.
Engineer shall prepare, at no additional
expense to City, all documents and/or drawings made necessary by Engineer’s errors and
omissions in the originally approved Construction Documents.
8.16 Change Requests and Material Changes.
Engineer shall evaluate and advise
City, in a timely manner and in writing, of any change requests and material change(s) which
may be requested or necessary in the Project plans and specifications. Engineer shall provide
the City with its opinion as to whether such change requests should be approved, denied or
revised. If the City has not hired a construction manager or other person to do so, the Engineer
shall prepare and execute all change orders and submit them to the City for authorization. If the
City has designated a construction manager or other person to prepare all change orders, the
Engineer shall review all change orders prepared by such person, execute them and deliver
them to the City for authorization if they meet with the Engineer’s approval, or submit them to
the City with recommendations for revision or denial if necessary. Engineer shall not order
contractors to make any changes affecting the contract price without approval by City of such a
written change order, pursuant to the terms of the Construction Documents. Engineer may
order, on its own responsibility and pending City Council approval, changes necessary to meet
construction emergencies, if written approval of City’s Representative is first secured.
8.17 Applications for Payment.
Engineer shall examine, verify and approve
contractor’s applications for payment, and shall issue certificates for payment in amounts
approved by the City’s inspector.
8.18 Final Color and Product Selection.
Engineer shall coordinate final color and
product selection with City’s original design concept.
8.19 Substantial Completion.
Engineer shall determine the date of substantial
completion, in consultation with the City.
8.20 Punch List.
After determining that the Project is substantially complete,
Engineer shall participate in the inspection of the Project and shall review all remaining
deficiencies and minor items needed to be corrected or completed on the Project, including
those identified on the punch list prepared by the contractor (“Punch List Items”). Engineer shall
notify contractor in writing that all Punch List Items must be corrected prior to final acceptance of
the Project and final payment. Engineer shall also notify City of all Punch List Items.
8.21 Warranties.
Engineer shall review materials assembled by the contractor and
subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction
books, diagrams, record “as built” drawings, and any other materials required from the
contractors and subcontractors pursuant to the Construction Documents. Engineer shall
coordinate and provide these materials to the City.
8.22 Certificate of Completion.
Engineer shall participate in any further inspections
of the Project necessary to issue Engineer’s Certificate of Completion and final certificate for
payment.
8.23 Documents for Project Close-Out.
Engineer shall cause all other Engineers,
engineers and other consultants, as may be hired by Engineer, to file any and all required
documentation with the City or other governmental authorities necessary to close out the
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Project. Engineer shall assist the City in obtaining such documentation from all other
Engineers, engineers, or other consultants.
9. RECORD DRAWINGS.
During the record drawings phase of the Project, Engineer shall do all of the following,
as well as any incidental services thereto:
9.1 Record Drawings and Specifications.
Not later than thirty (30) days after
substantial completion of the Project, before receipt of final payment, Engineer shall review and
forward the Final Working Drawings and Specifications, indicating on them all changes made by
change orders or otherwise pursuant to the Construction Documents, as well as all information
called for on the specifications, thus producing an “as-built” set of Final Working Drawings and
Specifications (“Record Drawings and Specifications”). The Record Drawings and
Specifications shall show, among other things, the location of all concealed pipe, buried conduit
runs and other similar elements within the completed Project. Engineer shall personally review
and certify that the Record Drawings and Specifications are a correct representation of the
information supplied to Engineer by any inspectors and the contractor. Engineer shall not be
required to verify any information by physical inspection.
9.2 Approval.
Once City provides Engineer with specific written approval of the
Record Drawings and Specifications, Engineer shall forward to City the complete set of original
Record Drawings and Specifications or a complete set of reproducible duplicate Record
Drawings and Specifications. The tracing shall be of such quality that clear and legible prints
may be made without appreciable and objectionable loss of detail.
9.3 Documents for Final Payment.
Prior to the receipt of Engineer’s final payment,
Engineer shall forward to City all of the following: (1) one clear and legible set of reproductions
of the computations; (2) the original copy of the specifications; (3) the Record Drawings and
Specifications as required herein; and (4) Engineer’s Certificate of Completion.
10. WARRANTY PERIOD.
During the warranty period phase of the Project, Engineer shall do all of the following, as
well as any incidental services thereto:
10.1 Advice.
Engineer shall provide advice to City on apparent deficiencies in the
Project during any applicable warranty periods for the Project.
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EXHIBIT “B”
SAMPLE COMPENSATION RATES AND REIMBURSABLE EXPENSES
3. HCR.
OURLY OMPENSATION ATES
CLASSIFICATIONSHOURLY RATE
Principal $ 175.00
Project Manager $ 145.00
Project Engineer $ 155.00
Engineer$ 115.00
Senior Designer $ 105.00
Designer$ 85.00
CAD Drafter $ 70.00
Clerical $ 60.00
2.RE.
EIMBURSABLE XPENSES
As approved by individual Authorization to Proceed.
3.AS.
DDITIONAL ERVICES
Additional Services shall be computed at the actual hourly rates listed above.
4.AC.
DDITIONAL ONSULTANTS
If City requires Engineer to hire consultants to perform any Additional Services, Engineer shall be
compensated therefore at the consultant’s actual hourly rates plus ten percent (10%). Owner shall
have the authority to review and approve the rates of any such consultants.
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EXHIBIT "C"
SAMPLE SCHEDULE OF SERVICES
The term of this Agreement shall be from _______________________ to
_________________, unless earlier terminated as provided in this Agreement.
Consultant shall complete all Services within the term of this Agreement and shall meet
all other established deadlines for each respective scope-of-work tasks as follows:
Scheduled Completion
Task Weeks Following Notice To Proceed
1 – Existing Record/As-Built Review 3
2 – Preliminary Design 8
3 – 50% PS&E Submittal 11
4 – 90% PS&E Submittal 16
5 – 100% PS&E Submittal 19
6 – Assistance During Bid Period 23
7 – Bid Review 24
8 – Construction Support 56
9 – Project Close Out 60
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