RPVCCA_SR_2010_01_05_06_On_Call_PW_ContractsCITY OF
MEMORANDUM
RANCHO PALOS VERDES
TO:
FROM:
DATE:
SUBJECT:
REVIEWED:
Project Manager:
HONORABLE MAYOR &CITY COUNCIL MEMBERS
RAY HOLLAND,DIRECTOR OF PUBLIC WORKS ~
JANUARY 5,2010
AWARD CONTRACTS FOR ON-CALL PROFESSIONAL
SERVICES
CAROLYN LEHR,CITY MANAGER &.
Ron Dragoo,Senior Engine~
RECOMMENDATIONS
1.Authorize awarding a contract for on-call professional services to:LRM,
Ltd.,Withers &Sandgren,Ltd.,Masoud Dejban,Inc.and Richie Bray,Inc;
and
2.Authorize the expenditure of up to $60,000 with each of these firms,with a
not to exceed amount of $25,000 for a single project.
BACKGROUNDI DISCUSSION
The Public Works Department relies on contract professional services to provide
services.Services typically include engineering design,inspection,geotechnical
engineering,landscape architecture services,contract management,surveying,plan
checking and environmental clearance.
When services are required for a capital project such as the overlay program,or other
significant projects,the department circulates a request for proposals (RFP),reviews
the proposals,recommends a firm,and prepares a report to the Council to,select the
firm,award a contract,and authorize expenditures.This process works well for large-
scale projects,and the department will continue to use this process for such projects.
The department,however,also requires services for projects in which this RFP process
will not work as well.These are generally small-scale projects or projects where
services are urgently needed.For such projects the RFP process creates delays,or
adds significant administrative cost.Since 1997 the department has obtained services
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Under the on-call process staff selects a firm from an approved list of firms.Under this
process the City Council pre-selects the consultants,and awards contracts,however
staff has the ability to authorize expenditures as established by the City Council.
Currently there are twenty-three firms authorized to perform on-call services with the
City.With the addition of these four firms,staff will have the ability to use on-call
services for structural design and landscape architect services.If staff's
recommendations are approved,a total of twenty-seven firms will be available to
provide services.On-call services are typically authorized for up to a three year period.
The period of these contracts will coincide with the existing on-call providers
(terminating June 30,2012).Staff has determined the three year term achieves a
balance between keeping the firms accountable and not requiring staff to unnecessarily
solicit new proposals,which increases administrative costs.
If staff recommendations are approved,a professional services contract could be
executed with each of the recommended firms.The amount awarded to each firm over
the course of the year will be a function of the needs of the department and the firm's
performance.
As a control measure and in the interest of equity,the cumulative contract amount with
each firm will be limited to $60,000 for the fiscal year,and each single project awarded
to a firm will be less than $25,000.The one exception to this is that on-call services
that are reimbursed by a trust deposit will not count towards the maximum amounts.
Funds are budgeted in various programs in the proposed FY2009-10 budget.Staff
manages the work awarded through the on-call service contracts ensuring funds
awarded remain within budgeted amounts.
Following City Council approval,a staff member will obtain on-call services by
requesting a proposal from an approved on-call consulting firm.The proposal will likely
be an estimate for the time and any costs that are incurred in performing the services
requested by the City;however,if the project is well defined a fixed cost proposal will be
requested.A purchase order will be opened and a portion of the department's budget
encumbered.This will all be done without further action by the City Council.
A copy of the standard professional services agreement is attached.
CONCLUSIONS
Adopting the recommendations will allow staff to encumber budgeted funds through the
City's on-call services program.Contract amounts are limited to $60,000 for any single
vendor and are not to exceed $25,000 for a single project.
FISCAL IMPACT
Funding for the recommended action is available in the adopted FY 2009 -10 budget.
Attachment:Professional Services Agreement 6-2
ON-CALL PROFESSIONAL/TECHNICAL SERVICES AGREEMENT
This Agreement is made and entered into this day of by and
between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY")and
__________....Jo.(hereafter referred to as "CONSULTANT").
WHEREAS,the CITY needs to have contracts with entities who routinely provide
certain professional services to the CITY so that these entities can be contacted on short
notice to address urgent issues;and
WHEREAS,the CITY routinely uses CONSULTANT's professional services and the
CITY is generally satisfied with these services;and
WHEREAS,the CITY and CONSULTANT would now like to have an on-call
professional services contract with each other such that the CITY may contact
CONSULTANT on short notice to address urgent issues within the scope of this
Agreement.
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 on-call services as follows:
1.2 Description of Services
CONSULTANT shall perform on-call professional services,as described
in CONSULTANT's Proposal and Schedule of Hourly Rates,attached hereto as Exhibit
"A"and incorporated herein by this reference.Each service shall be authorized in
writing by the CITY and shall include an estimate of the applicable cost of the work.
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 and agreed on by
CONSULTANT.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
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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
(a)CITY agrees to compensate CONSULTANT an amount not to exceed
sixty thousand dollars ($60,000)per fiscal year for services as described in Article 1,and
not to exceed twenty-five thousand dollars ($25,000)for a single service.On-call services
which are reimbursed by a trust deposit shall not count towards the maximum amounts.
CONSULTANT shall be paid for such services in accordance with CONSULTANT's
Proposal and Schedule of Hourly Rates attached hereto as Exhibit "A."The hourly rates in
Exhibit "A"shall be in effect through the end of this Agreement.
(b)CITY may request additional specified work under this Agreement.All
such work must be authorized in writing by the Director of Public Works prior to
commencement.CONSULTANT shall be paid for such additional services in accordance
with CONSULTANT's Proposal and Schedule of Hourly Rates,attached hereto as Exhibit
"A."
2.2 Payment Address
All payments due CONSULTANT shall be paid to:
Vendor
Address
City &State,Zip
2.3 Terms of Compensation
CONSULTANT will submit invoices monthly for the work completed in the
previous month.CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30)days of receipt of the invoice.CITY agrees to use its best efforts to notify
CONSULTANT of any disputed invoice within ten (10)days of the receipt of each invoice.
However,CITY's failure to timely notify CONSULTANT of a disputed amount shall not be
deemed a waiver of CITY's right to challenge such amount.
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.
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2.4 Term of Agreement
This Agreement shall commence on the date and year first written above and
shall terminate exactly three (3)years after that date,unless renewed in writing.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnification
CONSULTANT will defend,indemnify and hold harmless CITY and its
officials,officers,employees,agents and volunteers free and harmless from all tort
liability,including liability for claims,suits,actions,expenses or costs of any kind,
whether actual,alleged or threatened,actual attorneys'fees,experts'fees,or court
costs incurred by the CITY,arising out of or in any way connected with,in whole or in
part,the acts or omissions or willful misconduct of CONSULTANT or any of
CONSULTANT's officers,agents,employees or contractors in the performance of this
Agreement.This includes but is not limited to claims,suits and liabilities for bodily
injury,death or property damage to any individual or entity,including officers,agents,
employees or contractors of the CONSULTANT.The provisions of this paragraph shall
not apply to claims to the extent arising out of the sole negligence or willful misconduct
of the CITY and its officials,officers,employees,agents and volunteers.
In addition to the foregoing,CONSULTANT shall indemnify,defend and
hold free and harmless the CITY and the CITY's officials,officers,employees,agents
and volunteers from and against any and all losses,liabilities,damages,costs and
expenses,including reasonable attorneys'fees,experts'fees,and costs to the extent
the same are caused by negligence or willful misconduct of the CONSULTANT,or any
of the CONSULTANT's officials,officers,agents,employees or volunteers,in the
performance of professional services pursuant to 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.
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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
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 $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.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.
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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 shall contain
endorsements naming the CITY,its officers,agents and employees as additional insured.
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
4.1 Termination of Agreement
(a)This Agreement may be terminated at anytime,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
Article 6.13.
(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 Article 2.1.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All documents,plans,specifications,reports,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
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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
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.If CONSULTANT prepares a document on a computer,CONSULTANT
shall provide CITY with said document both in a printed format and in an acceptable
electronic format.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
A CITY representative shall be the Director of Public Works or his or her
designee,and a CONSULTANT representative shall be designated by CONSULTANT as
the primary contact person for each party regarding performance of this Agreement.
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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)and the applicable equal employment provisions of
the Civil Rights Act of 1964 (42 U.S.C.200e-217),and the Americans with Disabilities Act
of 1992 (42 U.S.C.§11200,et seq.).
6.3 Personnel
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 subcontractors in the
performance of its services under this Agreement,but at all times shall be responsible for
their services.
6.4 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.
6.5 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.
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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.
6.6 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 subcontractors
for additional services shall not be unreasonably restricted by the CITY provided
CONSULTANT notifies the CITY in advance.
6.7 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 at the CONSULTANT wishes except as expressly provided in this Agreement.
CONSU LTANT shall have no power to incu r any debt,obligation,or liability on behalf of the
CITY or otherwise act on behalf of the CITY as an agent.CONSULTANT shall not,at any
time or in any manner,represent that it or any of its agents,servants or employees,are in
any manner agents,servants or employees of CITY.CONSULTANT agrees to pay all
required taxes on amounts paid to CONSULTANT under this Agreement,and to indemnify
and hold the CITY harmless from any and all taxes,assessments,penalties,and interest
asserted against the CITY by reason of the independent contractor relationship created by
this Agreement.CONSULTANT shall fully comply with the workers'compensation law
regarding CONSULTANT and its employees.CONSULTANT further agrees to indemnify
and hold the CITY harmless from any failure of CONSULTANT to comply with applicable
workers'compensation laws.The CITY shall have the right to offset against the amount of
any fees due to CONSULTANT under this Agreement any amount due to the CITY from
CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or
indemnification arising under this Article.
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6.8 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.9 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.
6.10 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.
6.11 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.
6.12 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.
6.13 Notice
Except as otherwise required by law,any notice,request,direction,demand,
consent,waiver,approval or other communication required or permitted to be given
hereunder shall not be effective unless it is given in writing and shall be delivered (a)in
person or (b)by certified mail,postage prepaid,and addressed to the parties at the
addresses stated below,or at such other address as either party may hereafter notify the
other in writing as aforementioned:
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To CITY:
Responsible Person:Ray Holland,Interim Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes,CA 90275
To CONSULTANT:
Responsible Person:
Vendor
Address
City &State,Zip
A party may change its address by giving written notice to the other party.
Thereafter,any notice or other communication shall be addressed and transmitted to the
new address.If sent by mail,any notice,tender,demand,delivery or other communication
shall be deemed effective three (3)business days after it has been deposited in the United
States mail.For purposes of communicating these time frames,weekends and federal,
state,religious,County of Los Angeles or CITY holidays shall be excluded.No
communication via facsimile or electronic mail shall be effective to give any such notice or
other communication hereunder.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of
the date and year first above written.
Dated:_
CONSULTANT
BY:-------------
BY:-------------
Dated:_CITY OF RANCHO PALOS VERDES
A Municipal Corporation
MAYOR
BY:------:---:------------
ATTEST:
CITY CLERK
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Exhibit "A":
Consultant's Proposal and Schedule of Hourly Rates
including preparation of plans,specifications and Engineer's estimate
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