RPVCCA_CC_SR_2012_08_21_D_Miraleste_Plaza_Storm_Drain_Improvements_ProjectCrrvOF
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
REVIEWED:
Project Manager:
HONORABLE MAYOR &CITY COUNCIL MEMBERS
JIM HENDRICKSON,INTERIM DIRECTOR OF PUBLIC
WORKS
AUGUST 21,2012
AWARD CONTRACTS -MIRALESTE PLAZA STORM
DRAIN IMPROVEMENTS PROJECT
CAROLYN LEHR,CITY MANAGER cfl-
Andy Winje,Associate Civil Engineer ~
RECOMMENDATIONS
1.Approve the plans and specifications for the Miraleste Plaza Storm Drain
Improvements Project.
2.Authorize the Mayor and City Clerk to execute a construction agreement to
MG Enterprises,Inc.in an amount of $196,400.Authorize a construction
contingency of $20,000 (-10%)for a total construction authorization of
$216,400.
3.Authorize the Mayor and City Clerk to execute a professional services
agreement to Merit Civil Engineering in an amount not to exceed $24,975 for
construction staking,construction management and inspection services.
EXECUTIVE SUMMARY
Recent video taping of storm drains in the Miraleste Plaza revealed pipes that are in
need of replacement.In addition to the deteriorated condition,the pipes are difficult to
maintain due to small diameter and poor alignment.In January of this year the City
engaged a consultant from its on-call list to perform an analysis and provide design
solutions,including necessary construction documents,to replace these lines.City staff
has solicited bids and identified a low bidder and is recommending award of a
construction contract and a professional technical services agreement for construction
staking,management and inspection.This project budget is sufficient for the proposed
contracts and is funded through the Storm Water User Fee.
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BACKGROUND
The storm drainage system in the Miraleste Plaza was built under Los Angeles County
jurisdiction in the 1930's under design standards that are inferior to current methods
and materials.These pipes are deteriorating and should be replaced before failure.
The current alignment of the system,which passes through private property and
possibly under a structure,is also considered poor practice and should be corrected.
Finally,the pipe materials and diameters,unreinforced concrete pipe ranging from 8 to
12 inches,are unusual for public storm drains and should be replaced by larger
diameters and more robust material to support maintenance and reliability of the
system.
DISCUSSION
The proposed design corrects these deficiencies with 18-inch reinforced concrete pipe,
aligned under public right of way and entering the San Pedro Canyon at the same
location as the current outfall.This system belongs to the City and does not require a
County Flood Control Permit.
The project was advertised,and sealed bids were received and opened at 11 :00 a.m.
on July 24,2011.Ten proposals were received;the lowest responsible and responsive
bidder is MG Enterprises,Inc.The bid results are shown below:
CONTRACTOR BID AMOUNT
MG Enterprises Inc.$196,400
Cedro Construction Inc.$220,720
Colich &Sons,L.P.$232,520
GCI Construction,Inc.$250,441
Mode Engineering $266,573
Vasily Company,Inc.$274,325
Atlas Underground,Inc.$311,424
Minco Construction $325,250
Excel Paving $327,479
E&R Construction,Inc.$329,340
The apparent low bid has been reviewed for consistency with bid requirements.
References provided were contacted and all reported satisfactory performance.MG
Enterprises has worked for other local agencies on similar projects in recent years.The
bid documents are in order and their contractor's license is current.
Staff is recommending that the City Council authorize the Mayor and the City Clerk to
execute a construction contract to MG Enterprises,Inc.in the amount of $196,400
(Attachment A).Staff is also recommending approval of a $20,000 construction
contingency (-10%)to address unforeseen conditions,for a total construction
authorization of $216,400.
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Staff further recommends that the City Council authorize the Mayor and the City Clerk
to execute a professional services agreement with Merit Civil Engineering,Inc.for
construction staking,management and inspection services in an amount not to exceed
$24,975.This Professional Technical Services Agreement is included with this report
(Attachment B).
ENVIRONMENTAL ASSESSMENT
In accordance with the provisions of the California Environmental Quality Act (CEQA),Staff
has determined this project to be categorically exempt under Class 1-Existing Facilities;
therefore,no further environmental review is required.
Class 1 exempts projects that consist of the operation,repair and maintenance of existing
public or private structures from the preparation of environmental documents.The
proposed project does not involve significant expansion of use beyond that previously
existing;the project includes replacing an existing storm drain facility at the same location
and resu'lts in compliance with applicable standards to augment the public health and
safety,and the project site does not contain any environmentally sensitive habitat or
grasslands.As a result,this project is determined to be exempt and a Notice of Exemption
will be file with the Los Angeles County Clerk.
CONCLUSIONS
The Miraleste Plaza storm drain system has reached the end of its design life and is in
need of replacement.The replacement system will incorporate current design
standards and ease of maintenance considerations.The City is initiating the project at
this time to avoid potential impacts to the Miraleste Plaza,which is at risk due to
maintenance constraints caused by small diameter pipes,deteriorating structural
integrity of the pipes,and poor system alignment.
FISCAL IMPACT
Sufficient funds to complete this project at the recommended authorization amounts
have been budgeted in the FY 2011-12 Water Quality /Flood Protection budget
program.Staff will request this amount to be carried forward from FY 2011-12 to FY
2012-13.
Attachments:A Miraleste Plaza Storm Drain Improvements Project
Construction Contract
B Professional Technical Services Agreement
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Miraleste Plaza Storm Drain Improvements Project
Location Sketch
Existing Pipe Alignment
Proposed Pipe Alignment
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CITY OF RANCHO PALOS VERDES
PUBLIC WORKS AGREEMENT FOR
MIRALESTE PLAZA STORM DRAIN IMPROVEMENTS
THIS AGREEMENT ("Agreement")is made and entered this day of ,20_,by
and between the CITY OF RANCHO PALOS VERDES,a California municipal corporation ("City")and MG
Enterprises,Inc ("Contractor").Contractor's license number is A 902054.
In consideration of the mutual covenants hereinafter set forth,the parties hereto agree as follows:
1.Scope of Services.Contractor shall perform the work and provide all labor,materials,equipment
and services in a good and workmanlike manner for the project identified as MIRALESTE PLAZA
STORM DRAIN IMPROVEMENTS ("Project"),as described in this Agreement and in the Bid
Documents (including the Notice Inviting Sealed Bids,the Instructions to Bidders,the Proposal,the
General Provisions,the Special Provisions,the Appendices and all addenda as prepared prior to the
date of bid opening setting forth any modifications or interpretations of any said documents),which
are attached hereto as Exhibit "A"and incorporated herein by this reference,including
miscellaneous appurtenant work.All work shall be performed in accordance with the latest edition
of the Standard Specifications for Public Works Construction (commonly known as the
"Greenbook"),including supplements,prepared and promulgated by the Southern California Chapter
of the American Public Works Association and the Associated General Contractors of California
(collectively "Standard Specifications"),which is incorporated herein by this reference.In the event
of any conflict between the terms of this Agreement and incorporated documents,the terms of this
Agreement shall control.
2.Extra Work.Extra work,when ordered in writing by the Director of Public Works and accepted by
the Contractor,shall be paid for under written work order in accordance with the terms therein
provided.Payment for extra work will be made at the unit price or lump sum previously agreed upon
in writing between the Contractor and the Director of Public Works.All extra work shall be adjusted
daily upon report sheet furnished by the Contractor,prepared by the Director of Public Works,and
signed by both parties,and said daily report shall be considered thereafter the true records of extra
work done.
3.Effective Date.This Agreement is effective as of the date listed above,and shall remain in full force
and effect until Contractor has rendered the services required by this Agreement.
4.Time.Time is of the essence in this Agreement.
5.Force Majeure.Neither the City nor Contractor shall be responsible for delays in performance
under this Agreement due to causes beyond its control,including but not limited to acts of God,
acts of the public enemy,acts of the Government,fires,floods or other casualty,epidemics,
earthquakes,labor stoppages or slowdowns,freight embargoes, unusually severe weather,and
supplier delays due to such causes.Neither economic nor market conditions nor the financial
condition of either party shall be considered a cause to excuse delay pursuant to this Section.
Each party shall notify the other promptly in writing of each such excusable delay,its cause and
its expected delay,and shall upon request update such notice.
6.Compensation.In consideration of the services rendered hereunder,City shall pay Contractor a not
to exceed amount of one hundred ninety six thousand four hundred dollars ($196,400)in
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accordance with the prices as submitted in Contractor's Proposal,attached hereto as Exhibit "B"and
incorporated herein by this reference.
7.Payments.City shall make payments within thirty (30)days after receipt of an undisputed and
properly submitted payment request from Contractor.City shall return to Contractor any payment
request determined not to be a proper payment request as soon as practicable,but not later than
seven (7)days after receipt,and shall explain in writing the reasons why the payment request is not
proper.
A payment shall be made as the City Council of the City prescribes upon estimates approved by the
City Council.However,progress payments shall not be made in excess of ninety-five percent (95%)
of the percentage of actual work completed plus a like percentage of the value of material delivered
on the ground or stored subject to,or under the control of,the City,and unused.The City shall
withhold not less than five percent (5%)of the Agreement price until final completion and
acceptance of the Project.However,at any time after fifty percent (50%)of the work has been
completed,if the City Council of the City finds that satisfactory progress is being made,it may,at its
discretion,make any of the remaining progress payments in full for actual work completed.
8.Substitute Security.
a.At the written request and expense of Contractor,securities equivalent to any moneys
withheld by the City to ensure performance under this Agreement shall be deposited with
the City,or with a state or federally chartered bank in the State of California as the
escrow agent,that shall then pay those moneys to Contractor.Upon satisfactory
completion of the Agreement,the securities shall be returned to Contractor.
b.Alternatively,Contractor may request that the City shall make payment of retentions
earned directly to the escrow agent at the expense of Contractor.At the expense of
Contractor,Contractor may direct the investment of the payments into securities,and
Contractor shall receive the interest earned on the investments upon the same terms
provided for securities deposited by Contractor.Upon satisfactory completion of the
Agreement,Contractor shall receive from the escrow agent all securities,interest,and
payments received by the escrow agent from the City,pursuant to the terms of this
Section.
c.Securities eligible for investment shall include those listed in California Government Code
Section 16430,bank or savings and loan certificates of deposit,interest-bearing demand
deposit accounts,standby letters of credit,or any other security to which Contractor and
the City mutually agree in writing.Contractor shall be the beneficial owner of any
securities substituted for moneys withheld and shall receive any interest thereon.
d.If Contractor elects to receive interest on moneys withheld in retention by the City,it shall,
at the request of any subcontractor performing more than five percent (5%)of
Contractor's total bid,make that option available to the subcontractor regarding any
moneys withheld in retention by Contractor from the subcontractor.Further mandatory
details are provided in Public Contract Code Section 22300(d),which is incorporated
herein by this reference.
e.The escrow agreement for security deposits in lieu of retention shall be substantially
similar to the form provided in Public Contract Code Section 22300(f),which is
incorporated herein by this reference.
9.Taxes.Contractor shall calculate payment for all sales,unemployment,old age pension and other
taxes imposed by local,State of California and federal law.These payments are included in the
total amounts in Exhibit "B."
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10.Audit.The City or its representative shall have the option of inspecting and/or auditing all records
and other written materials used by Contractor in preparing its billings to the City as a condition
precedent to any payment to Contractor.Contractor will promptly furnish documents requested by
the City.Additionally,Contractor shall be subject to State Auditor examination and audit at the
request of the City or as part of any audit of the City,for a period of three (3)years after final
payment under this Agreement.
11.Unresolved Disputes.In the event that a dispute arises between the City and Contractor regarding
whether the conditions materially differ,involve hazardous waste,or cause a decrease or increase in
Contractor's cost of or time required for performance of any part of the work,Contractor shall not be
excused from any scheduled completion date provided for by the Agreement,but shall proceed with
all work to be performed under the Agreement.Contractor shall retain any and all rights provided
that pertain to the resolution of disputes and protests between the parties.In the event of any
dispute or controversy with the City over any matter whatsoever,Contractor shall not cause any
delay or cessation in or of work,but shall proceed with the performance of the work in dispute.This
include;s disputed time extension requests and prices for changes.The disputed work will be
categorized as an "unresolved dispute"and payment,if any,shall be as later determined by mutual
agreement or a court of law.Contractor shall keep accurate,detailed records of all disputed work,
claims and other disputed matters.Public Contract Code Sections 20104 et seq.and Rancho Palos
Verdes Municipal Code chapter 3.24 ("Claims Against the City")shall govern the procedures ofthe
claim process,and these provisions are incorporated herein by this reference.
12.Termination.This Agreement may be canceled by the City at any time with or without cause without
penalty upon thirty (30)days'written notice.In the event of termination without fault of Contractor,
City shall pay Contractor for all services satisfactorily rendered prior to date of termination,and such
payment shall be in full satisfaction of all services rendered hereunder.
13.Incorporation by Reference.All of the following documents are attached hereto and incorporated
herein by this reference:City of Rancho Palos Verdes Instructions for Execution of Instruments;
Insurance Requirements for the City of Rancho Palos Verdes Public Works Contract;Workers'
Compensation Certificate of Insurance;Indemnification and Hold Harmless Agreement and Waiver
of Subrogation and Contribution;Additional Insured Endorsement (Comprehensive General
Liability);Additional Insured Endorsement (Automobile Liability);and Additional Insured
Endorsement (Excess Liability).
14.Antitrust Claims.In entering into this Agreement,Contractor offers and agrees to assign to the City
all rights,title,and interest in and to all causes of action it may have under Section 4 of the Clayton
Act(15 U.S.C.Sec.15)or under the Cartwright Act (Chapter 2 (commencing with Section 16700)of
Part 2 of Division 7 of the California Business and Professions Code)arising from purchases of
goods,services,or materials pursuant to the Agreement.This assignment shall be made and
become effective at the time the City tenders final payment to Contractor without further
acknowledgment by the parties.
15.Trenching and Excavations.If the project involves trenching more than four (4)feet deep,
Contractor shall promptly and before the following conditions are disturbed notify the City in writing
of any:material that Contractor believes may be material that is hazardous waste,as defined in
California Health and Safety Code Section 25117,that is required to be removed to a Class I,Class
II,or Class III disposal site in accordance with provisions of existing law;subsurface or latent
physical conditions at the site differing from those indicated;or unknown physical conditions at the
site of any unusual nature,different materially from those ordinarily encountered and generally
recognized as inherent in work of the character provided for in the Agreement.The City shall
promptly investigate the conditions,and if the City finds that the conditions do materially differ or do
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involve hazardous waste and cause a decrease or increase in Contractor's cost of or the time
required for performance of any part of the work,the City shall issue a change order.
16.Utilities.The City acknowledges its responsibilities under Government Code section 4215 and
incorporates that section herein by this reference.
17.Location of Existing Elements.The methods used and costs involved to locate existing elements,
points of connection and all construction methods are Contractor's sole responsibility.Accuracy of
information furnished,as to existing conditions,is not guaranteed by the City.Contractor,at its sole
expense,must make all investigations necessary to determine locations of existing elements,which
may include,without limitation,contacting U.S.A.Alert and other private underground locating
firm(s),utiliZing specialized locating equipment and/or hand trenching.
18.Independent Contractor.Contractor 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
Contraytor or any of the Contractor's employees,except as herein set forth,and Contractor 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 at the Contractor wishes except as expressly
provided in this Agreement.Contractor shall have no power to incur any debt,obligation,or liability
on behalf of the City,bind the City in any manner,or otherwise act on behalf of the City as an agent.
Contractor 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.Contractor agrees to pay all
required taxes on amounts paid to Contractor 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.Contractor shall
fully comply with the workers'compensation law regarding Contractor and its employees.Contractor
further agrees to indemnify and hold the City harmless from any failure of Contractor to comply with
applicable workers'compensation laws.The City shall have the right to offset against the amount of
any compensation due to Contractor under this Agreement any amount due to the City from
Contractor as a result of its failure to promptly pay to the City any reimbursement or indemnification
arising under this Section.
19.Prevailing Wages.City and Contractor acknOWledge that this project is a public work to which
prevailing wages apply.The Agreement to Comply with California Labor Law Requirements is
attached hereto and incorporated herein by this reference.Eight hours of labor constitutes a legal
day's work.
20.Workers'Compensation.California Labor Code Sections 1860 and 3700 provide that every
contractor will be required to secure the payment of compensation to its employees.In accordance
with the provisions of California Labor Code Section 1861,the Contractor hereby certifies as follows:
"l am aware of the provisions of Section 3700 of the Labor Code which require every
employer to be insured against liability for workers'compensation or to under take self-
insurance in accordance with the provisions of that code,and I will comply with such
provisions before commencing the performance of the work of this contract."
21.Subcontracting.Contractor shall adhere to all provisions of the Subletting and Subcontracting
Fair Practices Act,Public Contract Code Section 4100 et seq.,which is incorporated herein by
this reference.
22.Nondiscriminatory Employment.Contractor shall not unlawfully discriminate against any
individual based on race,color,religion,nationality,gender,sex,sexual orientation,age or
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condition of disability.Contractor understands and agrees that it is bound by and will comply
with the nondiscrimination mandates of all statutes and local ordinances and regulations.
23.Debarred,Suspended or Ineligible Contractors.Contractor shall not be debarred throughout the
duration of this Agreement.Contractor shall not perform work with debarred subcontractor pursuant
to California Labor Code Section 1777.1 or 1777.7.
24.Compliance with Laws.Contractor shall comply with all applicable federal,state and local laws,
ordinances,codes and regulations in force at the time Contractor performs pursuant to this
Agreement.
25.Bonds.Contractor shall obtain faithful performance and payment bonds,each in an amount that is
not less than the total compensation amount of this Agreement,and nothing in this Agreement shall
be read to excuse this requirement.The required forms entitled Payment Bond (Labor and
Materials)and Performance Bond are attached hereto and incorporated herein by this reference.
26.Contractor's Representations.Contractor represents,covenants and agrees that:a)Contractor 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 its full
performance under this Agreement;c)there is no litigation pending against Contractor,and
Contractor is not the subject of any criminal investigation or proceeding;and d)to Contractor's
actual knowledge,neither Contractor nor its personnel have been convicted of a felony.
27.Conflicts of Interest.Contractor 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 Contractor "financially interested,"as provided in
Government Code Section 1090 and 87100,in any decisions made by City on any matter in
connection with which Contractor has been retained pursuant to this Agreement.
28.Third Party Claims.City shall have full authority to compromise or otherwise settle any claim relating
to the Agreement at any time.City shall timely notify Contractor of the receipt of any third-party claim
relating to the Agreement.City shall be entitled to recover its reasonable costs incurred in providing
this notice.
29.Non-Assignability;Subcontracting.Contractor shall not assign or transfer any interest in this
Agreement nor any part thereof,whether by assignment or novation,without the City's prior written
consent.Any purported assignment without written consent shall be null,void,and of no effect,and
Contractor 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 or relating to
any unauthorized assignment.
30.Applicable Law.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.
31.Attorneys'Fees.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 reliefto which the
party may be entitled.
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32.Titles.The titles used in this Agreement are for convenience only and shall in no way define,limit or
describe the scope or intent of this Agreement or any part of it.
33.Authority.The person executing this Agreement on behalf of Contractor warrants and represents
that he or she has the authority to execute this Agreement on behalf of Contractor and has the
authority to bind Contractor to the performance of its obligations hereunder.
34.Entire Agreement.This Agreement,including any other documents incorporated herein by specific
reference,represents the entire and integrated agreement between City and Contractor.This
Agreement supersedes all prior oral or written negotiations,representations or agreements.This
Agreement may not be modified or amended,nor any provision or breach waived,except in a writing
signed by both parties which expressly refers to this Agreement.
35.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.
36.Non-waiver of Terms.Rights and Remedies.Waiver by either party of anyone 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
Contractor 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 Contractor,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.
37.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 Contractor's or City's regular
business hours or (b)on the third business day following deposit in the United States mail,postage
prepaid,to the addresses listed below,or at such other address as one party may notify the other:
To CITY:
Mr.Jim Hendrickson,Interim Dtrector of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes,CA 90275
To CONTRACTOR:
The address listed in Exhibit "B."
38.Counterparts.This Agreement may be executed in counterpart originals,duplicate originals,or
both,each of which is deemed to be an original for all purposes.
39.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 ofthis Agreement shall
continue in full force and effect.
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IN WITNESS WHEREOF,the parties hereto have executed the within Agreement the day and year first
above written.
CITY OF RANCHO PALOS VERDES
By:_
Mayor
ATTEST:
By:-------
City Clerk
Dated:_
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APPROVED AS TO FORM:
By:_
City Attorney
By:kU--
Printe~Name:scr"Oe?d/'1#f:1
Title:/USI i1CA T,
By:_
Printed Name:_
Title:_
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CITY OF RANCHO PALOS VERDES
PROFESSIONALITECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement")is made and entered into this day of
_______,20_by and between the City of Rancho Palos Verdes
(hereinafter referred to as the "CITY")and Merit Civil Engineering,Inc.,(hereafter
referred to as "CONSULTANT").
IN CONSIDERATION of the covenants hereinafter setforth,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
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R6876-0001\1347726v1.doc Agreement for Professional/Technical Services
D-12
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
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R6876-0001\1347726v1.doc Agreement for ProfessionalfTechnical Services
D-13
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
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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.
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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,
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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 ofthe
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
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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 offurnishing 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,defaultor 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.
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(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 ofthe
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.
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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 anyone 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
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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.]
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of
the date and year first above written.
Dated:_
Dated:_
ATTEST:
By:_
City Clerk
Merit Civil Engineering,Inc.
("CONSULTANT")
By:_
Printed Name:_
Title:_
By:_
Printed Name:---------
Title:_
CITY OF RANCHO PALOS VERDES
("CITY")
By:_
Mayor
APPROVED AS TO FORM:
By:_
City Attorney
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