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HomeMy WebLinkAbout*AGMT - TEC Engineering F2 1111 1111 • 1• AGREEMENT FOR ON -CALL ENGINEERING CONTRACT SERVICES ,,,,,. • THIS AGREEMENT F CON RACT SERVICES (the "Agreement ") is made and entered into as of a i%4day ofM0 2004 by and between the CITY OF SEAL BEACH, a municipal corporation ( "City ") and TEC Engineering, a division of The Environmental Company, Inc. ( "Consultant "). RECITALS WHEREAS, City desires to employ the services of a consultant to provide on -call engineering services and WHEREAS, Consultant represents that it has the expertise and experience to provide such services; NOW THEREFORE, and for good consideration, the City and Consultant agree as follows: 1. Location of Subject Project/Studies. Various Locations. 2. Description of Services to be Provided. Consultant shall perfrom on -call Building/Facility Condition Assessment and engineering related services as described in Attachment 1, Scope of Work. 3. Term. Unless terminated earlier as set forth in this Agreement, the services shall commence on March 22, 2004 ( "Commencement Date ") 4. Party Representatives. The City designates Douglas A. Dancs, P.E. to act on City's behalf. The Consultant designates the Robert Sauer, P.E. to act on Consultant's behalf: 5. Attachments. This Agreement incorporates by reference the following Attachments to this Agreement: Attachment 1: Scope of Work Attachment 2: Rate Schedule Attachment 3: Schedule b. • 6. Integration. This Agreement represents the entire understanding of City and Consultant as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with regard to those matters covered by this Agreement. This Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may only be amended by the mutual consent of the parties by an instrument in writing. 7. Standard of Performance. Consultant agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 8. Performance to Satisfaction of City. Consultant agrees to perform all work to the satisfaction of City within the time specified. If Consultant's work is not satisfactory in the opinion of City's designated representative, City has the right to take appropriate action, including but not limited to any or all of the following: (i) meeting with Consultant to review the quality of the work and resolve matters of concern; (ii) requiring Consultant to repeat or correct the work at no additional fee until it is satisfactory; (iii) suspending the delivery of new or additional work to Consultant for an indefinite time; (iv) withholding payment; and (v) terminating this Agreement as hereinafter set forth. City's options set forth herein are non - exclusive, and are in addition to any remedy available at law to City. 9. Prohibition Against Subcontracting or Assignment. Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the prior express written approval of City. In addition, neither the Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. In the event of any unapproved transfer, including in any bankruptcy proceeding, City may void the Agreement at City's option in its sole and absolute discretion. No approved transfer shall release any surety of Consultant of any liability hereunder without the express consent of City. 10. Compensation. Consultant shall be compensated on a time and material basis per the attached Schedule 2. In no event shall compensation exceed the approved task order limit set by the Director of Public Works. 11. Insurance. Consultant shall have insurance as follows: 11.1 General Liability (including premises and operations, contractual liability, personal injury, independent contractors liability): One Million Dollars ($1,000,000.00) Single Limit, per occurrence. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be three times the occurrence limit. D \My Documents\BD Files\Seal Beach \Prof Sery Agreement TEC Engmeenng[2] doc 2 i' • • 11.2 Automobile Liability (including owned, non - owned, and hired autos): One Million Dollars ($1,000,000.00), Single limit, per occurrence for bodily injury and property damage. 11.3 Employer's Liability One Million Dollars ($1,000,000.00) per occurrence for injuries incurred in providing services under this Agreement (if Consultant is required to have per the laws of California). 11.4 Workers Compensation Consultant shall, to the extent required by state law, provide Employee's Insurance Workers' Compensation Insurance for the protection of Consultant's employees. Consultant shall file a certificate of insurance which evidences that Consultant is in compliance with said Worker's Compensation Insurance requirement. Consultant shall require all subcontractors similarly to provide such Workers' Compensation Insurance and certificates of insurance for their respective employees. 11.5 Professional Liability Insurance Consultant shall have errors and omission insurance in the amount of $1,000,000. 11.6 General Requirements. All of Consultant's and its sub - contractor's policies of insurance shall: A. Name City, its officers, officials, employees, agents, representatives and volunteers (collectively hereinafter "City and City Personnel ") as additional insureds and contain no special limitations on the scope of protection afforded to City and City Personnel; B. Be primary insurance and shall provide that any insurance or self - insurance maintained by City or City Personnel shall be in excess of Consultant's insurance and shall not contribute with it; C. Be "occurrence" rather than "claims made" insurance; D. Apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; E. Be endorsed to state that the insurer shall waive all rights of subrogation against City and City Personnel; and • F. Be written by good and solvent insurer(s) admitted to do business in the State of California and acceptable to City. 11.7 Deductibles. Any deductibles or self - insured retentions must be declared to and approved by City prior to the execution of this Agreement by City. D \My Documents\BD Files \Seal Beach \Prof Eery Agreement TEC Engmeenng[2] doc 3 • • 11.8 Notice of Policy Changes. Each such insurance policy shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non - renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, certified, or by personal delivery. In addition to such notice provided to City by the insurer, Consultant shall also provide City with thirty (30) days prior written notice, by certified mail, return receipt requested, of the suspension, voiding, cancellation, reduction in coverage or in limits, non - renewal, or material change for any reason, of any such insurance policy or policies. 11.9 Evidence of Coverage. Consultant shall furnish City with certificates of insurance demonstrating the coverage required by this Agreement which shall be received and approved by City not less than five (5) working days before work commences. The duplicate originals and original endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. The procuring of such insurance or the delivery of duplicate originals and endorsements evidencing the same shall not be construed as a limitation on Consultant's obligation to indemnify City and City Personnel. 12. Indemnification. Consultant shall indemnify, defend, and hold City and City Personnel harmless from and against any and all actions, claims, demands, judgments, attomey's fees, costs, damage to persons or property, penalties, obligations, expenses or liabilities that may be asserted or claimed by any person or entity arising out of the acts, errors, or omissions of Consultant, its employees, agents, representatives or subcontractors in the performance of any tasks or services for or on behalf of City, whether or not there is concurrent active or passive negligence on the part of City and/or City Personnel; provided, however, that the Consultant shall not be required to indemnify, defend or hold harmless City or City Personnel against claims arising from the sole active negligence or willful misconduct of City or City Personnel. In connection therewith: 12.1 Consultant shall defend, with Counsel acceptable to City, any action or actions filed in connection with any such claimed damage, injury, penalty, obligation or liability, and shall pay all costs and expenses, including attorney's fees, incurred therewith. 12.2 In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such claimed damage, injury, penalty, obligation or liability, Consultant shall defend City and pay to City any and all costs and expenses incurred by City in such action or proceeding, together with actual attorney's fees and expert witness fees. 13. Compliance with Laws. The Consultant shall put forth reasonable professional efforts to comply with applicable laws, codes and regulations in effect as of the date of the execution of this Agreement. Materially increased or duplicative services occasioned by design changes made necessary by newly enacted laws, codes and regulations after D \My Documents\BD Files \Seal Beach\Prof Sery Agreement TEC Engmeetmg[2] doc 4 • • . this date shall entitle the consultant to a reasonable adjustment in the schedule and additional compensation commensurate with any agreed -upon modification in the Scope of Work provisions of this Agreement. 14. Independent Contractor. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner or employer of Contractor in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Contractor. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Contractor nor any of Contractor's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from City; and neither Contractor nor any of its employees shall be paid by City any wage or overtime benefit. City is under no obligation to withhold State and Federal tax deductions from Contractor's compensation. Neither Contractor nor any of Contractor's employees shall be included in the competitive service, have any property right to any position, or any of the rights a City employee might otherwise have in the event of termination of employment. 15. Covenant Against Discrimination. Consultant covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, relation, sex, marital status, national origin, or ancestry, in the performance of this Agreement. Consultant further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seg.) as the same may be amended from time to time. 16. Termination By City. City reserves the right to terminate this Agreement at any time, with or without cause, upon written notice to Consultant. Upon receipt of any notice of termination from City, Consultant shall immediately cease all services hereunder except such as may be specifically approved in writing by City. Consultant shall be entitled to compensation for all services rendered prior to receipt of City's notice of termination and for any services authorized in writing by City thereafter. 17. Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party require the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 18. Legal Actions. The Municipal and Superior Courts of the State of Califomia in the County of Orange shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the laws of the State of California. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or D \My Documents\BD Dies \Seal Beach \Prof Eery Agreement TEC Engmeci mg[2] doc 5 a. r • remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 19. Attorneys' Fees. If either party to this Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to litigation costs, including actual attorney's fees and expert witness fees. 20. Force Majeure. The time period specified in this Agreement for performance of work may be extended by City because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, provided that Consultant shall within ten (10) days of the commencement of such delay notify City in writing of the causes and length of the delay. If Consultant gives notice of such delay, City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay, when and if in the judgement of City, such delay is justified. City's determination shall be made in writing, and shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused. Consultant's sole remedy shall be extension of this Agreement. 21. Notices. Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be personally delivered, or delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch. Notices shall be delivered to the following addresses: To City: Director of Public Works City of Seal Beach 211 Eighth Street Seal Beach, CA 90740 To Consultant: TEC Engineering 514 Via de la Valle, Suite 308 Solana Beach, CA 92075 22. Time of Essence. Time is of the essence in the performance of this Agreement. D \My Documents\BD Files\Seal Beach\Prof Sery Agreement TEC Engmeermg[2] doc 6 III • 23. Interpretation: Severability. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. 24. Corporate Authority. The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement for Contract Sery i es as of the date first set forth above. CITY OF ► E L I' A f H CONS i• 1 _, B * 1 B ! . L Y y Its: Cit ana . er Its: President, TEC Engineering ' Attest �J By: . if Its: Clerk APPROVED AS TO FORM: Quinn Barrow City Attorney D \My Docmnents\BD Files\Seal Beach\Prof Sery Agreement TEC Engmeenng[2] doc 7 • 0 Attachment 1 SCOPE OF WORK D \My Documents \BD Files \Seal Beach \Prof Sery Agreement TEC Engmeenng[2] doc 8 III • 200 GENERAL REQUIREMENTS FOR THE SCOPE OF WORK 200.1 EXAMINATION OF RFP /RFQ DOCUMENTS: The Consultant shall be solely responsible for examining the City's RFP /RFQ documents, including any addenda issued, and for informing itself with respect to any and all conditions which may in any way affect the amount or nature of the proposal, or the performance of the Services in the event the Consultant is selected. No relief for error or omission will be given. 200.3 E MAIL: The Consultant shall supply and maintain individual Internet E — mail addresses for each of the project managers and principals involved in the project and other consultant personnel as the City deems necessary. 200.4 INVOICES: The Consultant shall submit not more than one invoice a month and shall obtain a copy of the accounts payable schedule. The invoice will be in a format that is acceptable to City Engineering Staff and shall detail individual personnel who worked on the project, specific tasks performed, hours worked, billing rate, total costs, and previous billing history, percentage of work completed, percentage of dollars spent. The Consultant shall prepare invoices that show costs against each major milestone task. The Consultant shall notify the City when the cumulative compensation payable under this Contract has reached 75% of the Contract not to exceed price. If at any time the Consultant has reason to believe that the total cost to the Authority for the performance of this Contract will be greater or substantially less that the Contract not to exceed price, the Consultant shall notify the Consultant in writing to that effect and give its revised estimate of the total cost for the performance of this Contract. The notice shall state the estimated amount of additional funds required to continue performance for the remainder of the contract term. In no event is the Consultant authorized to exceed the "not to exceed price" without prior written approval from the City. 200.5 COMPUTER FILES: The Consultant shall supply the City with a digital and editable copy of all files that are included in the hard copy of the report. The Consultant shall use or transfer into the following formats: Word Processing: Microsoft Word, Spreadsheets: Excel, Databases: Filemaker Pro, Microsoft Access, GIS: ArcView, Drawings: Autocad. All final plans shall be submitted also on CD readable by City computers. All digital files shall be submitted on a CD ROM. The City shall have the right to use, duplicate, modify or disclose the technical data and the information contained therein. The Consultant agrees to provide any proprietary software or data used in conjunction with the project to the City, if requested, as long as the City pays for any additional licensing costs. 200.6 KEY PERSONNEL: The Consultant shall not reassign any personnel mentioned in the RFQ /Interview process unless under extraordinary circumstances. The Consultant shall secure the prior written approval the City for any change or D \My Documents \BD Files \Seal Beach\Prof Sery Agreement TEC Engmeenng[2] doc 9 . t III III reassignment of the key personnel, submitting written documentation of the new individual's qualification. The Consultant's project manager shall supervise and direct the services, and have overall responsibility for the services in accordance with the Consultant agreement and Scope of Work. The Consultant shall be solely responsible for implementation of all services, means, methods, techniques, sequences, and procedures and for coordination of all portions of the services. All workers shall have sufficient skill and experience to perform the work assigned to them. The City shall have the right, in its absolute discretion to require the removal of the Consultant's personnel at any level assigned to the performance of the Services at no additional fee to the City, if the City considers such removal necessary and in its best interest and request such removal in writing. Further, an employee who is dismissed for any of the above reasons shall not be re- employed on this Contract. 200.7 UNAUTHORIZED WORK: Any services not required by the terms of the final scope of work or proposal that are performed without written authority from the City, will be considered as unauthorized and at the sole expense of the Consultant. Services so performed will not be paid for, and no extension in the period of performance shall be granted on account thereof. 200.8 AUDITS: The Consultant shall keep and maintain full and complete records and books of account of its costs and expenses relating to the performance of the Services, in accordance with generally accepted accounting practices. Such records and accounts shall permit the Consultant to furnish the City, upon written notice, an accurate written allocation of the costs to the various elements of the Services, as may be required by the Authority. Upon reasonable advance written notice the City or its representatives shall have the right to examine, any books, records, accounts, and other documents of the Consultant directly pertaining to costs when such costs are the basis of a claim or of reimbursement to the Consultant hereunder. The Consultant will make reasonable efforts to assure that the any such representative is not a competitor of the Consultant to which the disclosure of such cost information would have a detrimental effect on the Consultant's business. The Consultant shall keep and preserve all such books, records, accounts, and other documents for a period of at least three years after completion of the Services and Final Payment or if this Contract is terminated in whole or in part after the final termination agreement. 200.9 CONSULTANT'S INTERACTION WITH MEDIA AND THE PUBLIC: The Consultant shall refer all inquiries from the news media to the City. If the Consultant receives a complaint from a citizen or the community, the Consultant shall inform the City what action was taken to alleviate the situation. 200.10 SUBCONTRACTORS /SUBCONSULTANT: The City reserves the right of prior approval of all subcontractors and retains the right to request the Consultant to terminate any subcontractor, for any reason appropriate by the City, by so notifying the Consultant in writing. Should said notification be submitted to the Consultant, it shall terminate said subcontractor immediately. D \My Documents\BD Files \Seal Beach \Prof Sery Agreement TEC Engmeenng[2] doc 10 • • The City shall have no liability to any subcontractor(s) for payment for services under this Contract or other work performed for Consultant. Any subcontract entered into by Consultant under the contract shall duly note that the responsibility for payment for the technical services or any other services performed shall be the sole responsibility of the Consultant. 200.11 DIRECT EXPENSES: It is expected that the Consultant has extensive knowledge and experience performing this type of work. The Consultant shall prepare a not to exceed budget for direct expenses and breakdown costs for services such as copying, blue prints, computer time, reproduction, delivery, and any other foreseeable expense not covered in the Consultant's hourly rates. Therefore, the Consultant shall receive no additional compensation beyond that which is detailed in their budget. The City will not pay for mileage charges. 200.12 INSURANCE: The Consultant shall obtain a minimum of $1,000,000 worth of professional error and omissions insurance prior to entering into an agreement with the City. The insurance requirement is non - negotiable. 200.13 RETENTION FOR CALTRANS: Not Used. D \My Documents \BD Files\Seal Beach\Prof Sery Agreement TEC Engmeermg[2] doc 1 1 II • 201 SPECIFIC REQUIREMENTS FOR THE SCOPE OF WORK The Consultant shall provide the following services on an on call basis to the City of Seal Beach: • Building and Facility Inspection and Evaluation • Building and Facility Engineering Services. • Americans with Disabilities Act compliance • Construction Support/Shop Drawing Review • Attend Meetings upon request of the Director of Public Works Prior to starting any work, the consultant shall submit a detailed task order scope, fee propsal, schedule, and overall project estimate. No work shall begin without written approval by the Engineering Division. All work must be within the budgetary limits established in the project. 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Markups vary depending on the execution method selected for each work package. • Item Execution Method; x =Application • • ya • , : „Source:: ' 4 % Markup Basic cost Service Calls, PWD, Labor, Materials, RSMeans Base Rates 0% data and Special Projects Subs, Equipment Subtotal Contractor Service Calls, PWD, Applied to labor RSMeans, Facilities 30% Setup and and Special Projects only Maintenance & Repair delay Time Cost Data Book, "How the book is built,” Page ix Subtotal 1 Area Cost Service Calls, PWD, Applied to all NSI website 35% Factor and Special Projects categories Subtotal 2 Sales tax Service Calls, PWD, Applied to State law 7.25% and Special Projects materials only Subtotal 3 Overhead and Service Calls, PWD, Applied to all RSMeans, Building 40% Profit and Special Projects categories Construction Cost Data Book, Section R01100- 050 Subtotal 4 Contingency Service Calls, PWD, NAVFAC COST 5% and Special Projects ENGINEERING U.S. COST.NET Subtotal 5 (Total Construction Cost) Contract PWD and Special Applied to all NAVFAC COST 8% Administration Projects categories ENGINEERING U.S. (SIOH) COST.NET Subtotal 6 Planning and Special Projects Applied to all ' Activity Directed 10% Design categories Subtotal 7 (Grand Total) 23 II • Attachment 2 SCHEDULE OF COMPENSATION D \My Documents\BD Files\Seal Beach\Prof Sery Agreement TEC Engmeering[2] doc 13 • • SCHEDULE OF COMPENSATION Hourly Rates not to Exceed without further authorization the budgetary estimates for any Project requested by the Engineering Division. Scope and number of hours to be upon mutual agreement of the Engineering Division and the Consultant. D \My Documents\BD Fdes \Seal Beach \Prof Sery Agreement TEC Engmeermg[2] doc 14 • • Statement of Qualifications Building/Facility Condition Assessment Department of Publk Works City of Seal Beach, California City Engineer The Environmental Company, Inc. Fee Schedule Labor Category Hourly Rate Principal In Charge $145 Project Manager $130 Architect / Engineer $115 Database Specialist $90 Mechanical / Electrical Inspector $85 Architectural / Structural Inspector $75 Architect/CADD $65 Technical Editor / Data Analyst $55 Other Direct Costs (e.g. reproduction, shipping, travel, etc.) will be negotiated per project. TEC Engineering Solana Beach, California Page 39 • • Attachment 3 Work Schedule D \My Documents\BD Files \Seal Beach\Prof Eery Agi eement TEC Engmeermg[2] doc 15 • • SCHEDULE The Consultant will provide a detailed schedule for each task order. No work shall be authorized unless the Engineering Division has first approved the schedule. The schedule must show the dates of the expected start and completion of the various items of the Contract work. It shall be in sufficient detail to show the chronological relationship of all activities of the project including, but not limited to, estimated starting and completion dates of various activities, critical path, review times. D \My Documents\BD Files \Seal Beach\Prof Sery Agreement TEC Engmeenng[2] doc 16