RPVCCA_CC_SR_2011_09_06_G_Via_Canada_Storm_Drain_Inlet_ImprovementsCrrvOF Rf\NCHO PALOS VERDES
REVIEWED:
Project Manager:
TO:
FROM:
DATE:
SUBJECT:
MEMORANDUM
HONORABLE MAYOR &CITY COUNCIL MEMr:.~fJl.(#/
RAY HOLLAND,DIRECTOR OF PUBLIC WOR~lT'
SEPTEMBER 6,2011
AWARD CONTRACTS -VIA CANADA STORM DRAIN
PD·478 INLET IMPROVEMENTS PROJECT
CAROLYN LEHR,CITY MANAGER (€)Gsr CL.
Andy Winje,Associate Civil Engineer ~
RECOMMENDATIONS
1.Approve the plans and specifications for the Via Canada Storm Drain PD-478
Inlet Improvements Project.
2.Award construction contract to HYM Engineering,Inc.and authorize the
Mayor and City Clerk to execute a construction contract to HYM Engineering,
Inc.in the amount of $41 ,048.Authorize a construction contingency of
$8,000 for a total construction authorization of $49,048.
3.Award professional services contract to Merit Civil Engineering,Inc.and
authorize the Mayor and City Clerk to execute a professional services
agreement to Merit Civil Engineering,Inc.in an amount not to exceed
$15,000 for inspection services.
EXECUTIVE SUMMARY
City staff has been made aware of local flooding that occurs during certain rain events
at the north end of Via Canada.In March 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 prevent further flooding due to rain events up to
and including the County's standard design storm.City staff has solicited bids and
identified a low bidder and is recommending award of a construction contract and a
professional services agreement for construction inspection.This project budget is
sufficient for the proposed contracts and is funded through the Storm Water User Fee.
This project is included in the FY 2011-12 Budget approved by City Council earlier this
year.
G-1
BACKGROUND
The watershed that culminates at the north end of Via Canada,a cul-de-sac,is drained
through a County storm drain known as PD-478.On several occasions over the last
decade,stormwater flowing down the streets and into the cul-de-sac has overwhelmed
the drainage inlet located at the north end of Via Canada,forcing water onto private
property.The City design consultant has determined that the pipe is sufficiently sized
but water does not effectively get into the drain.Increasing the number of inlets near
the cul-de-sac should allow additional interception of street flows and keep the cul-de-
sac from flooding during storms up to and including the design storm.
DISCUSSION
The project consists of installing additional curb inlets in Via Canada and Via Velardo to
intercept storm flows in the street before they reach then end of the cul-de-sac on Via
Canada.The inlets will be connected to PD-478,which will direct the water into the
canyon drainage at the rear of the properties on Via Canada.The City has asked the
County's watershed managers to review and approve the improvements to the County
drain,which they have-done.A County flood permit from the County is being sought
and is expected to be given prior to beginning of construction.The permit is required to
modify the County system and is a first step in eventually transferring the improvements
back to the County for long term maintenance.
The project was advertised,and sealed bids were received and opened at 11 :00 a.m.
on August 23,2011.Nine proposals were received;the lowest responsible and
responsive bidder is HYM Engineering,Inc.The bid results are shown below:
CONTRACTOR BID AMOUNT
HYM Engineering,Inc $41,048.00
Terra Pipeline Inc $45,496.16
Powell Engineering Construction $45,630.00
Cedro Construction Inc $48,823.00
Garcia Juarez Construction Inc $53,488.00
Excel Paving Company $61,376.00
Newtech Engineering &Construction,Inc $69,920.00
Clarke Contracting Corp.$73,142.00
Atlas-Allied,Inc $89,870.00
The apparent low bid has been reviewed for consistency with bid requirements.
References provided were contacted and all reported satisfactory performance.HYM
Engineering,Inc.has worked for other local agencies on similar projects in recent
years.One Southern California agency has just asked them to complete a third
consecutive "on-call"type project.The bid documents are in order and their G-2
contractor's license is current.
The unit prices quoted are competitive and the base bid is less than the Engineer's
base estimate of $42,564.Staff is recommending that the City Council authorize the
Mayor and the City Clerk to execute a construction contract to HYM Engineering,Inc.in
the amount of $41,048 (Attachment A).Staff is also recommending approval of an
$8,000 construction contingency to address unforeseen conditions,for a total
construction authorization of $49,048.
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 inspection in the not to exceed amount of $15,000.This Professional
Services Agreement is included with this report (Attachment B).
CONCLUSIONS
The City is obligated to provide flood protection to County design standards on City
rights of way.Additional curb inlets upstream of the cul-de-sac should eliminate
anticipated flooding up to the design storm.The City is initiating the project at this time
to avoid further impacts to City residents that might occur during the upcoming rainy
season.
FISCAL IMPACT
Funding for this project has been budgeted in the approved FY11/12 budget.
Attachments:A Via Canada Storm Drain PD-478 Inlet Improvements Project
Construction Contract
B Professional Services Agreement
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ATTACHMENT A
CITY OF RANCHO PALOS VERDES
AGREEMENT FOR VIA CANADA STORM DRAIN PD·478
INLET IMPROVEMENTS
THIS AGREEMENT ("Agreement")is made and entered this 6th day of September,2011,by and between
the CITY OF RANCHO PALOS VERDES,hereinafter referred to as "City"and HYM ENGINEERING,INC.,
hereinafter referred to as "Contractor."
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 VIA CANADA
STORM DRAIN PD-478 INLET IMPROVEMENTS ("Project"),as described in this Agreement and in the
Bid Documents (including the Notice Inviting Sealed Bids,the Instructions to Bidders,the General
Provisions,the Special Provisions,the Proposal,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 "Green book"),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.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.
3.Time.Time is of the essence in this Agreement.
4.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.
5.Compensation.In consideration ofthe services rendered hereunder,City shall pay Contractor a not
to exceed amount of forty one thousand forty eight dollars ($41,048.00)in accordance with the prices as
submitted in Contractor's Proposal,attached hereto as Exhibit "B"and incorporated herein by this
reference.The City shall compensate Contractor as stated in the "Measurement and Payment"section of
the General Provisions of the Bid Documents.
6.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.
R6876-0001 \1383658v3 C-l G-4
7.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.
8.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."
9.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.
10.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 includes disputed time extension
requests and prices for changes.The disputed work will be categorized as an "unresolved dispute"and
R6876-0001\1383658v3 C-2 G-5
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 of the claim process,and these provisions are incorporated herein by this
reference.
11.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.
12.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).
13.Antitrust Claims.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.
14.Utilities.The City acknowledges its responsibilities under Government Code section 4215 and
incorporates that section herein by this reference.
15.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.
16.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
Contractor 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 ofthe 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
R6876-0001 \1383658v3 C-3 G-6
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.
17.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.
18.Workers'Compensation Insurance.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:
"I 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."
19.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.
20.Nondiscriminatory Employment.Contractor shall not unlawfully discriminate against any
individual based on race,color,religion,nationality,gender,sex,sexual orientation,age or 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.
21.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.
22.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.
23.Bonds.Contractor shall obtain faithful performance and payment bonds as required by law,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.
24.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.
25.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.
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26.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.
27.Applicable Law.The validity,interpretation,and performance ofthis 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.
28.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 relief to which the party
may be entitled.
29.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.
30.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.
31.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.
32.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.
33.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.
34.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.Ray Holland,Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
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Rancho Palos Verdes,CA 90275
To CONTRACTOR:
The address listed in Exhibit "B."
35.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.
36.Severability.If any term or portion of this Agreement is h'eld 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.
IN WITNESS WHEREOF,the parties hereto have executed the within Agreementthe day and year
first above written.
CITY OF RANCHO PALOS VERDES
By:--:-::--_
Mayor
ATIEST:
By:~--::-:-_:__------
City Clerk
CONTRACTOR:
By:_
Printed Name:_
Date:_
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ATTACHMENT B
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement ("Agreement")is made and entered into this 6th day of September,
2011 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 set forth,the parties hereto
mutually agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Description
The Project is described as follows:
Construction Inspection Services for Via Canada Storm Drain PD-478 Inlet
Improvements Project.
1.2 Description of Services
CONSULTANT shall provide construction inspection services as described
in the Consultant's Proposal and included Schedule of Hourly Rates,dated August 26,
2011,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 fifteen
thousand dollars ($15,000)for services as described in Article 1.
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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 Proposal and included Schedule of
Hourly Rates,which is within Exhibit "A."The schedule of hourly rates shall be in effect
through the end of this Agreement or June 30,2012,whichever occurs first.
2.5 Term of Agreement:
This Agreement shall commence on September 7,2011 and shall terminate
on June 30,2012,unless sooner terminated pursuant to Article 4 of this Agreement.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnification
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
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G-11
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
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
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G-12
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,CONSU LTANT 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.
ARTICLE 4
TERMINATION
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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,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
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related to a claim that CITY's use of any ofthe 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,etseq.).
6.3 Personnel
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
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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,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.
(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.
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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 underthis Article.
6.9 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
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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 United States mail,postage prepaid,to the addresses listed below,
or at such other address as one party may notify the other:
To CITY:
Ray Holland,Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes,CA 90275
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To CONSULTANT:
Robert Merrell,President
Merit Civil Engineering,Inc.
12391 Lewis Street,Suite 201
Garden Grove,CA 92840
IN WITN ESS WHEREOF,the parties hereto have executed this Agreement as ofthe
date and year first above written.
Dated:_MERIT CIVIL ENGINEERING,INC.
("CONSULTANT")
BY:------------
BY:------------
Dated:,_CITY OF RANCHO PALOS VERDES
("CITY")
Mayor
BY:---~--------
ATTEST:APPROVED AS TO FORM:
City Clerk City Attorney
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Exhibit "A":
Consultant's Proposal,including Schedule of Hourly Rates
(dated August 26,2011)
Exhibit "A"
R6876-0001 \1389702v2.doc Agreement for Professional Services
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