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Merit Civil Engineering (2012) Miraleste cIT" cart CITY OF RANCHO PALOS VERDES PROFESSIONAL/TECHNICAL SERVICES AGREEMENT s4 THIS AGREEMENT ("Agreement") is made and entered into this 411 day of A vIv.rt , 2011- by and between the City of Rancho Palos Verdes (hereirSafter referred to as the "CITY") and Merit Civil Engineering, Inc., (hereafter referred to as "CONSULTANT"). IN CONSIDERATION of the covenants hereinafter set forth,the parties hereto agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1 Project Description The Project is described as follows: Miraleste Plaza Storm Drain Improvements Project. 1.2 Description of Services CONSULTANT shall: provide construction staking, construction management and inspection services on a time and materials basis, as described in the Consultant's Proposal , which is attached hereto as Exhibit "A" and incorporated herein by this reference. 1.3 Schedule of Work Upon receipt of written Notice to Proceed from the CITY, CONSULTANT shall perform with due diligence the services requested by the CITY. Time is of the essence in this Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty performance by CITY, other consultants/contractors, or governmental agencies, or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. ARTICLE 2 COMPENSATION 2.1 Fee CITY agrees to compensate CONSULTANT an amount not to exceed twenty- four thousand nine hundred seventy-five dollars ($24,975) for services as described in Page 1 of 11 R6876-000111347726v1.doc Agreement for Professional/Technical Services a i Article 1. 2.2 Payment Address All payments due CONSULTANT shall be paid to: Merit Civil Engineering, Inc. 12391 Lewis Street, Suite 201 Garden Grove, CA 92840 2.3 Terms of Compensation CONSULTANT shall submit monthly invoices for the percentage of work completed in the previous month. CITY agrees to authorize payment for all undisputed invoice amounts within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to notify CONSULTANT of any disputed invoice amounts or claimed completion percentages within ten (10)days of the receipt of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed amount or claimed completion percentage shall not be deemed a waiver of CITY's right to challenge such amount or percentage. Additionally, in the event CITY fails to pay any undisputed amounts due CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY agrees that CONSULTANT shall have the right to consider said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10) working days advance written notice. 2.4 Additional Services CITY may request additional specified work under this Agreement. All such work must be authorized in writing by the CITY's Director of Public Works prior to commencement. CONSULTANT shall perform such services, and CITY shall pay for such additional services in accordance with CONSULTANT's Fee Schedule, which is within Exhibit"A." The hourly rates shown on the Fee Schedule shall be in effect through the end of this Agreement. 2.5 Term of Agreement This Agreement shall commence on August 21, 2012 and shall terminate on June 30, 2013 unless sooner terminated pursuant to Article 4 of this Agreement. ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification Page 2 of 11 R6876-0001\1347726v1.doc Agreement for Professional/Technical Services CONSULTANT shall defend, indemnify, and hold the CITY, its officials, officers, employees, agents and independent contractors serving in the role of CITY officials, and volunteers (collectively "Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, to property or persons, including wrongful death (collectively "Claims"), in any manner arising out of or incident to any acts or omissions of CONSULTANT, its officials, officers, employees or agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages, attorneys' fees, and other related costs and expenses, except for such Claims arising out of the sole negligence or willful misconduct of the Indemnitees. With respect to any and all such Claims, CONSULTANT shall defend Indemnitees at CONSULTANT's own cost, expense, and risk and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. CONSULTANT shall reimburse Indemnitees 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 CONSULTANT or Indemnitees. All duties of CONSULTANT under this Section shall survive termination of this Agreement. 3.2 General Liability CONSULTANT shall at all times during the term of the Agreement carry, maintain, and keep in full force and effect, a policy or policies of Commercial General Liability Insurance, with minimum limits of one million dollars ($1,000,000) for each occurrence and two million dollars($2,000,000)general aggregate for bodily injury, death, loss or property damage for products or completed operations and any and all other activities undertaken by CONSULTANT in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better. 3.3 Professional Liability CONSULTANT shall at all times during the term of this Agreement, carry, maintain, and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of one million dollars($1,000,000)per claim and aggregate for errors and/or omissions of CONSULTANT in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A:VII or better. If a "claims made" policy is provided, such policy shall be maintained in effect from the date of performance of work or services on the CITY's behalf until three (3)years after the date of work or services are accepted as completed. Coverage for the post-completion period may be provided by renewal or replacement of the policy for each of the three (3)years or by a three-year extended reporting period endorsement, which reinstates all limits for the extended reporting period. If any such policy and/or policies have a retroactive date, that Page 3 of 11 R6876-0001\1347726v1.doc Agreement for Professional/Technical Services • date shall be no later than the date of first performance of work or services on behalf of the CITY. Renewal or replacement policies shall not allow for any advancement of such retroactive date. 3.4 Automobile Liability CONSULTANT shall at all times during the term of this Agreement obtain, maintain, and keep in full force and effect, a policy or policies of Automobile Liability Insurance,with minimum of one million dollars($1,000,000) per claim and occurrence and two million dollars ($2,000,000) in the aggregate for bodily injuries or death of one person and five hundred thousand dollars ($500,000) for property damage arising from one incident. 3.5 Worker's Compensation CONSULTANT agrees to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law. CONSULTANT shall require any subcontractor similarly to provide such compensation insurance for their respective employees. 3.6 Notice of Cancellation (a) All insurance policies shall provide that the insurance coverage shall not be cancelled by the insurance carrier without thirty (30) days prior written notice to CITY, or ten (10) days notice if cancellation is due to nonpayment of premium. CONSULTANT agrees that it will not cancel or reduce said insurance coverage. (b) CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and effect, CITY may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, CITY may take out the necessary insurance and pay, at CONSULTANT's expense, the premium thereon. 3.7 Certificate of Insurance At all times during the term of this Agreement, CONSULTANT shall maintain on file with the CITY Clerk a certificate of insurance showing that the aforesaid policies are in effect in the required amounts. The commercial general liability policy shall contain endorsements naming the CITY, its officers, agents and employees as additional insureds. 3.8 Primary Coverage The insurance provided by CONSULTANT shall be primary to any coverage available to CITY. The insurance policies (other than workers compensation and professional liability) shall include provisions for waiver of subrogation. Page 4 of 11 R6876-000111347726v1.doc Agreement for Professional/Technical Services ARTICLE 4 TERMINATION 4.1 Termination of Agreement (a) This Agreement may be terminated at any time,with or without cause, by the CITY upon thirty(30)days prior written notice or by CONSULTANT upon ninety(90) days prior written notice. Notice shall be deemed served if completed in compliance with Section 6.14. (b) In the event of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT, CONSULTANT shall be paid compensation for all services performed by CONSULTANT, in an amount to be determined as follows: for work satisfactorily done in accordance with all of the terms and provisions of this Agreement, CONSULTANT shall be paid an amount equal to the percentage of services performed prior to the effective date of termination or cancellation in accordance with the work items; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to CONSULTANT for the full performance of the services described in this Agreement. ARTICLE 5 OWNERSHIP OF DOCUMENTS 5.1 Ownership of Documents and Work Product All documents, plans, specifications, reports, information, data, exhibits, photographs, images, video files and media created or developed by CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the property of the CITY without restriction or limitation upon its use, duplication or dissemination by the CITY. All Written Products shall be considered "works made for hire," and all Written Products and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of the CITY without restriction or limitation upon their use, duplication or dissemination by the CITY. CONSULTANT shall not obtain or attempt to obtain copyright protection as to any Written Products. CONSULTANT hereby assigns to the CITY all ownership and any and all intellectual property rights to the Written Products that are not otherwise vested in the CITY pursuant to the paragraph directly above this one. CONSULTANT warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property right exists, including computer software, used in the rendering of the services and the production of all Written Products produced under this Agreement, Page 5 of 11 R6876-0001\1347726v1.doc Agreement for Professional/Technical Services • and that the CITY has full legal title to and the right to reproduce the Written Products. CONSULTANT shall defend, indemnify and hold the CITY, and its elected officials, officers, employees, servants, attorneys,designated volunteers, and agents serving as independent contractors in the role of CITY officials, harmless from any loss, claim or liability in any way related to a claim that CITY's use of any of the Written Products is violating federal, state or local laws, or any contractual provisions, or any laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights and/or interests in products or inventions. CONSULTANT shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the services and Written Products produced under this Agreement. In the event the use of any of the Written Products or other deliverables hereunder by the CITY is held to constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at its expense, shall: (a) secure for CITY the right to continue using the Written Products and other deliverables by suspension of any injunction, or by procuring a license or licenses for CITY; or (b) modify the Written Products and other deliverables so that they become non- infringing while remaining in compliance with the requirements of this Agreement. This covenant shall survive the termination of this Agreement. Upon termination, abandonment or suspension of the Project, the CONSULTANT shall deliver to the CITY all Written Products and other deliverables related to the Project without additional cost or expense to the CITY. If CONSULTANT prepares a document on a computer, CONSULTANT shall provide CITY with said document both in a printed format and in an electronic format that is acceptable to the CITY. ARTICLE 6 GENERAL PROVISIONS 6.1 Representation The CITY representative shall be the Director of Public Works or his or her designee, and CONSULTANT shall notify CITY of CONSULTANT's designated representative. These individuals shall be the primary contact persons for the parties regarding performance of this Agreement. 6.2 Fair Employment Practices/Equal Opportunity Acts In the performance of this Agreement, CONSULTANT shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Sections 12940-48), the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act of 1992 (42 U.S.C. § 11200, et seq.). 6.3 Personnel Page 6 of 11 R6876-000111347726v1.doc Agreement for Professional/Technical Services CONSULTANT represents that it has, or shall secure at its own expense, all personnel required to perform CONSULTANT's services under this Agreement. Any person who performs engineering services pursuant to this Agreement shall be licensed as a Civil Engineer by the State of California and in good standing. CONSULTANT shall make reasonable efforts to maintain the continuity of CONSULTANT's staff who are assigned to perform the services hereunder and shall obtain the approval of the Director of Public Works of all proposed staff members who will perform such services. CONSULTANT may associate with or employ associates or subconsultants in the performance of its services under this Agreement, but at all times shall CONSULTANT be responsible for its associates or subconsultants' services. 6.4 CONSULTANT's Representations CONSULTANT represents, covenants and agrees that: a)CONSULTANT is licensed, qualified, and capable of furnishing the labor, materials, and expertise necessary to perform the services in accordance with the terms and conditions set forth in this Agreement; b)there are no obligations, commitments, or impediments of any kind that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the extent required by the standard of practice, CONSULTANT has investigated and considered the scope of services performed, has carefully considered how the services should be performed, and understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. 6.5 Conflicts of Interest CONSULTANT agrees not to accept any employment or representation during the term of this Agreement or within twelve(12)months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement. 6.6 Legal Action (a) Should either party to this Agreement bring legal action against the other, the validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, excluding California's choice of law rules. Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court. (b) If any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement,the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in addition to any other relief to which the party may be entitled. Page 7 of 11 R6876-000111347726v1.doc Agreement for Professional/Technical Services • (c) Should any legal action about a project between CITY and a party other than CONSULTANT require the testimony of CONSULTANT when there is no allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for its testimony and preparation to testify at the hourly rates in effect at the time of such testimony. 6.7 Assignment Neither this Agreement nor any part thereof shall be assigned by CONSULTANT without the prior written consent of the CITY. Any such purported assignment without written consent shall be null and void, and CONSULTANT shall hold harmless, defend and indemnify the CITY and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from any unauthorized assignment. Notwithstanding the above, CONSULTANT may use the services of persons and entities not in CONSULTANT's direct employ, when it is appropriate and customary to do so. Such persons and entities include, but are not necessarily limited to, surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of subconsultants for additional services shall not be unreasonably restricted by the CITY provided CONSULTANT notifies the CITY in advance. 6.8 Independent Contractor CONSULTANT is and shall at all times remain, as to the CITY, a wholly independent contractor. Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein set forth, and CONSULTANT is free to dispose of all portions of its time and activities which it is not obligated to devote to the CITY in such a manner and to such persons, firms, or corporations as the CONSULTANT wishes except as expressly provided in this Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability on behalf of the CITY or otherwise act on behalf of the CITY as an agent. CONSULTANT shall not, at any time or in any manner, represent that it or any of its agents, servants or employees, are in any manner agents, servants or employees of CITY. CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify and hold the CITY harmless from any and all taxes, assessments, penalties, and interest asserted against the CITY by reason of the independent contractor relationship created by this Agreement. CONSULTANT shall fully comply with the workers' compensation law regarding CONSULTANT and its employees. CONSULTANT further agrees to indemnify and hold the CITY harmless from any failure of CONSULTANT to comply with applicable workers' compensation laws. The CITY shall have the right to offset against the amount of any fees due to CONSULTANT under this Agreement any amount due to the CITY from CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or indemnification arising under this Article. Page 8 of 11 R6876-0001\1347726v1.doc Agreement for Professional/Technical Services 6.9 Titles The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.10 Entire Agreement This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended, or provisions or breach may be waived, only by subsequent written agreement signed by both parties. 6.11 Construction In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 6.12 Non-Waiver of Terms, Rights and Remedies Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by the CITY of any payment to CONSULTANT constitute or be construed as a waiver by the CITY of any breach of covenant, or any default which may then exist on the part of CONSULTANT, and the making of any such payment by the CITY shall in no way impair or prejudice any right or remedy available to the CITY with regard to such breach or default. 6.13 Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 6.14 Notice Except as otherwise required by law, any notice or other communication authorized or required by this Agreement shall be in writing and shall be deemed received on (a)the day of delivery if delivered by hand or overnight courier service during CONSULTANT's or CITY's regular business hours or (b) on the third business day following deposit in the Page 9 of 11 R6876-0001\1347726v1.doc Agreement for Professional/Technical Services United States mail, postage prepaid, to the addresses listed below, or at such other address as one party may notify the other: To CITY: Responsible Person: Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 To CONSULTANT: Responsible Person: Bob Merrill Address: Merit Civil Engineering, Inc. 12391 Lewis Street, Suite 201 Garden Grove, CA 92840 [Signatures on next page.] Page 10 of 11 R6876-0001\1347726v1.doc Agreement for Professional/Technical Services IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: q//q/2____ Merit Civil Engineering, Inc. ("CONSAip-TANT") By: . I Printed Name: ifidlevfrLr(Lj4 Title: By: Printed Name: Title: /o/ /// Dated:• /2- CITY OF RANCHO PALOS VERDES ("CITY") By: Of" •;i2ksr--A Mayor ATTEST: APPROVED AS TO FORM: SBy: % / /,� - By: City Clerk City Attorney Page 11 of 11 R6876-0001\1347726v1.doc Agreement for Professional/Technical Services , Exhibit "A": , Consultant's Proposal, including Fee Schedule Exhibit "A" R6876-0001\1347726v1.doc Municipal Engineering MEFunr- Land Surveying Infrastructure August 7, 2012 Mr. Andy Winje Department of Public Works City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, CA 90275 Subject: Field Engineering Services Proposal —Miraleste Storm Drain Dear Andy: In response to the Request for Proposal, Merit Civil Engineering is pleased to submit our proposal to provide field engineering services for the Miraleste storm drain project. This proposal will outline our recommendation for inspection activities for the project, proposed scope of services, schedule and the level of coverage anticipated. PROJECT UNDERSTANDING The Miraleste storm drain project includes the construction of 18" storm drain with manholes within the Miraleste Plaza, along the back alley and into the canyon beyond. The work will necessarily impact traffic flow and should be monitored closely to mitigate that impact by ensuring the contractor provides adequate traffic control and access during work hours. The following activities are recommended to manage the storm drain construction: • Adequate BMP installations to control surface water and construction debris. • Compaction testing during trench back filling if slurry is not used • Site and construction inspection on a part time as-needed basis including daily reports • Construction staking • Engineering support as needed for changes • On site owner's representative • As built drawings in CAD and in PDF The contract time for the storm drain project is 45 working days. I believe the number of days that will require inspection will probably be 35 or so and even then, most of the days would require something less than full time inspection. Therefore, the inspection time estimated to establish a budget for the actual inspection of the project is 35 days at 5 - 6 hours per day. I plan to be the designated inspector as I have a good overall knowledge of the issues to be addressed and am very familiar with the project site. Construction surveys will be needed and are part of this proposal. An estimated 18 hours are Merit Civil Engineering, Inc. Office: (714)748-0531 12391 Lewis Street, Suite 201 Fax: (714)748-0681 Garden Grove, CA 92840 Proposal to City of Rancho Palos Verdes Miraleste Storm Drain August 3, 2012 Page 2 of 2 anticipated to complete the various staking elements and are included in the estimated fee. These hours may be kept separate from this authorization if desired by the City. SCHEDULE The pre-construction meeting will be the first activity followed with any coordination necessary with the utility companies. COMPENSATION The proposed total Not-to-Exceed fee for the above-described services is detailed on the attached Fee Breakdown spreadsheet. The total Not-to-Exceed fee is $ 24,975.00. Incidental costs relative to the assignment for office supplies, travel, phone calls, etc. are included in the above quoted Not-to-Exceed fee. We look forward to assisting you on this assignment. Please contact me with any questions you may have. Respectfully, MERIT CIVIL ENGINEERING, INC. jai • Robert Merrell, P.E. President 2 Merit Civil Engineering, Inc MERIT Merit CMI EngWeeds*.Inc City of Rancho Palos Verdes Miraleste Storm Drain Inspection Fee Breakdown Proposal Submittal August 3,2012 ClassificationProject Project Constr. 2-Man Manager Engineer Inspection Clerical Crew Total Billing Rate Outside Hourly Billing Rate $170 a 148 $105 $82 $245 Hours Summary Costs Comments TASK BREAKDOWN I. Storm Drain Inspection 1. Pre-construction Meeting 4 4 $420 2. Field Surveys 1 18 19 $4,558 3. Utility Coordination 1 2 3 $358 4. On-site Construction Inspection 185 2 187 $19,589 $50 Reproduction Subtotals 0 2 191 2 18 213 $24,925 $50 Hours 0 2 191 2 18 213 - - TOTAL NTE FEE TOTALS Cost $0 $296 $20,055 $164 $4,410 - $24,925 $50 $24,975.00 Miraleste SD Inspection fee.xls MERIT CIVIL ENGINEERING,INC. 8/3/2012