HomeMy WebLinkAboutCM Signed Agreement MNSAGREEMENT
THIS AGREEMENT is made and entered into in the City of San Luis Obispo on this l I day of, 2018
by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and MNS
ENGINEERS INC., hereinafter referred to as Consultant.
WITNESSETH
WHEREAS, on August 25, 2018, City requested proposals for Capital Improvement Plan Construction Management
Services per Specification No. 50410.2018CM.
WHEREAS, pursuant to said request, Consultant submitted a proposal that was accepted by City for said services.
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained,
the parties hereto agree as follows:
1. Term. The term of this Agreement shall be from the date this Agreement is made and entered, as first written above,
until acceptance or completion of said services.
2. Start and Completion of Work. Work on this project shall begin within 5 calendar days after contract execution.
Individual projects shall be completed in accordance with approved project schedules.
3. Contract Term for On -Call Service Contracts. The services identified in this specification will be contracted for by
the City for four years. Actual work may extend beyond the final date.
4. Cost Increases for On -Call Service Contracts and Contract Extension. Labor rates during the contract term may
be increased on an annual basis to reflect projected increases in labor costs and overhead provided those increases
are incorporated into the Proposal.
The term of the contract may be extended by mutual consent for an additional year. During this extended period, labor
rates may be increased to reflect increased labor rates and overhead provided the City is notified and those increases
are incorporated into the extension.
5. Work Delays. Should the Consultant be obstructed or delayed in the work required to be done hereunder by changes
in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by
the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war
programs, then the time of completion may, at the City's sole option, be extended for such periods as may be agreed
upon by the City and the Consultant. In the event that there is insufficient time to grant such extensions prior to the
completion date of the contract, the City may, at the time of acceptance of the work, waive liquidated damages that may
have accrued for failure to complete on time, due to any of the above, after hearing evidence as to the reasons for such
delay, and making a finding as to the causes of same.
6. Termination. If, during the term of the contract, the City determines that the Consultant is not faithfully abiding by any
term or condition contained herein, or the Consultant's work is determined to be deficient, the City may notify the
Consultant in writing of such defect or failure to perform. This notice will give the Consultant a 10 (ten) calendar day
notice of time thereafter in which to perform said work or cure the deficiency.
If the Consultant has not performed the work or cured the deficiency within the ten days specified in the notice, such
shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to the
Consultant to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights
under the contract except, however, any and all obligations of the Consultant's surety shall remain in full force and
effect, and shall not be extinguished, reduced, or in any manner waived by the termination thereof.
In said event, the Consultant shall be entitled to the reasonable value of its services performed from the beginning date
in which the breach occurs up to the day it received the City's Notice of Termination, minus any offset from such payment
representing the City's damages from such breach. "Reasonable value" includes fees or charges for goods or -services
as of the last milestone or task satisfactorily delivered or completed by the Consultant as may be set forth in the
Agreement payment schedule; compensation for any other work, services or goods performed or provided by the
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Consultant shall be based solely on the City's assessment of the value of the work -in -progress in completing the overall
workscope.
The City reserves the right to delay any such payment until completion or confirmed abandonment of the project, as
may be determined in the City's sole discretion, so as to permit a full and complete accounting of costs. In no event,
however, shall the Consultant be entitled to receive in excess of the compensation quoted in its proposal.
If, at any time during the term of the contract, the City determines that the project is not feasible due to funding shortages,
unforeseen circumstances, or is in its best interest to terminate the contract, the City reserves the right to terminate the
contract. Consultant will be paid compensation due and payable to the date of termination.
7. Ability to Perform. The Consultant warrants that it possesses, or has arranged through subcontracts, all capital and
other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance
with any and all applicable federal, state, county, city, and special district laws, ordinances, and regulations.
8. Sub -contract Provisions. No portion of the work pertinent to this contract shall be subcontracted without written
authorization by the City, except that which is expressly identified in the Consultant's proposal. Any substitution of sub -
consultants must be approved in writing by the City. For any sub -contract for services in excess of $25,000, the
subcontract shall contain all provisions of this agreement.
9. Contract Assignment. The Consultant shall not assign, transfer, convey or otherwise dispose of the contract, or its
right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the
previous written consent of the City.
10. Inspection. The Consultant shall furnish City with every reasonable opportunity for City to ascertain that the services
of the Consultant are being performed in accordance with the requirements and intentions of this contract. All work
done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of such
work shall not relieve Consultant of any of its obligations to fulfill its contract requirements.
11. Record Retention and Audit. For the purpose of determining compliance with various laws and regulations as well
as performance of the contract, the Consultant and sub -consultants shall maintain all books, documents, papers,
accounting records and other evidence pertaining to the performance of the contract, including but not limited to the
cost of administering the contract. Materials shall be made available at their respective offices at all reasonable times
during the contract period and for three years from the date of final payment under the contract. Authorized
representatives of the City shall have the option of inspecting and/or auditing all records. For Federally funded projects,
access to records shall also include authorized representatives of the State and Federal government. Copies shall be
furnished if requested.
12. Conflict of Interest. The Consultant shall disclose any financial, business, or other relationship with the City that may
have an impact upon the outcome of this contract, or any ensuing City construction project. The Consultant shall also
list current clients who may have a financial interest in the outcome of this contract, or any ensuing City construction
project which will follow. The Consultant staff shall provide a Conflict of Interest Statement where determined necessary
by the City.
The Consultant covenants that it presently has no interest, and shall not acquire any interest —direct, indirect or
otherwise —that would conflict in any manner or degree with the performance of the work hereunder. The Consultant
further covenants that, in the performance of this work, no sub -consultant or person having such an interest shall be
employed. The Consultant certifies that no one who has or will have any financial interest in performing this work is an
officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, the
Consultant shall at all times be deemed an independent Consultant and not an agent or employee of the City.
13. Rebates, Kickbacks or Other Unlawful Consideration. The Consultant warrants that this contract was not obtained
or secured through rebates, kickbacks or other unlawful consideration, either promised or paid to any City employee.
For breach or violation of the warranty, the City shall have the right in its discretion; to terminate the contract without
liability; to pay only for the value of the work actually performed; to deduct from the contract price; or otherwise recover
the full amount of such rebate, kickback or other, unlawful consideration.
14. Covenant Against Contingent Fees. The Consultant warrants by execution of this contract that no person or selling
agency has been employed, or retained, to solicit or secure this contract upon an agreement or understanding, for a
commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established
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commercial or selling agencies maintained by the Consultant for the purpose of securing business. For breach or
violation of this warranty, the City has the right to annul this contract without liability; pay only for the value of the work
actually performed, or in its discretion, to deduct from the contract price or consideration, or otherwise recover the full
amount of such commission, percentage, brokerage, or contingent fee.
15. Compliance with Laws and Wage Rates. The Consultant shall keep itself fully informed of and shall exercise standard
of care to observe and comply with all applicable state and federal laws and county and City of San Luis Obispo
ordinances, regulations and adopted codes during its performance of the work. This includes compliance with prevailing
wage rates and their payment in accordance with California Labor Code. For purposed of this paragraph, "construction"
includes work performed during the design and preconstruction phases of construction, including but not limited to,
inspection and land surveying work.
16. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Consultant is required to
pay.
17. Permits, Licenses and Filing Fees. The Consultant shall procure all permits and licenses, pay all charges and fees,
and file all notices as they pertain to the completion of the Consultant's work. The City will pay all application fees for
permits required for the completion of the project including building and regulatory permit application fees. Consultant
will provide a 10 day notice for the City to issue a check.
18. Safety Provisions. The Consultant shall conform to the rules and regulations pertaining to safety established by OSHA
and the California Division of Industrial Safety.
19. Public and Employee Safety. Whenever the Consultant's operations create a condition hazardous to the public or
City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary
railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent
accidents or damage or injury to the public and employees.
20. Preservation of City Property. The Consultant shall provide and install suitable safeguards, approved by the City, to
protect City property from injury or damage. If City property is injured or damaged resulting from the Consultant's
operations, it shall be replaced or restored at the Consultant's expense. The facilities shall be replaced or restored to
a condition as good as when the Consultant began work.
21. Immigration Act of 1986. The Consultant warrants on behalf of itself and all sub -consultants engaged for the
performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform
and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.
22. Consultant Non -Discrimination. In the award of subcontracts or in performance of this work, the Consultant agrees
that it will not engage in, nor permit such sub -consultants as it may employ, to engage in discrimination in employment
of persons on any basis prohibited by State or Federal law.
23. Accuracy of Specifications. The specifications for individual projects are believed by the City to be accurate and to
contain no affirmative misrepresentation or any concealment of fact. Consultants are cautioned to undertake an
independent analysis of any test results in the specifications, as City does not guaranty the accuracy of its interpretation
of test results contained in the specifications package. In preparing its proposal, the Consultant and all sub -consultants
named in its proposal shall bear sole responsibility for proposal preparation errors resulting from any misstatements or
omissions in the specifications that could easily have been ascertained by examining either the project site or accurate
test data in the City's possession. Although the effect of ambiguities or defects in the specifications will be as determined
by law, any patent ambiguity or defect shall give rise to a duty of Consultant to inquire prior to proposal submittal. Failure
to so inquire shall cause any such ambiguity or defect to be construed against the Consultant. An ambiguity or defect
shall be considered patent if it is of such a nature that the Consultant, assuming reasonable skill, ability and diligence
on its part, knew or should have known of the existence of the ambiguity or defect. Furthermore, failure of the Consultant
or sub -consultants to notify City in writing of specification defects or ambiguities prior to proposal submittal shall waive
any right to assert said defects or ambiguities subsequent to submittal of the proposal.
To the extent that the specifications constitute performance specifications, the City shall not be liable for costs incurred
by the successful Consultant to achieve the project's objective or standard beyond the amounts provided therefor in the
proposal.
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In the event that, after awarding the contract, any dispute arises as a result of any actual or alleged ambiguity or defect
in the specifications, or any other matter whatsoever, Consultant shall immediately notify the City in writing, and the
Consultant and all sub -consultants shall continue to perform, irrespective of whether or not the ambiguity or defect is
major, material, minor or trivial, and irrespective of whether or not a change order, time extension, or additional
compensation has been granted by City. Failure to provide the hereinbefore described written notice within one (1)
working day of Consultant's becoming aware of the facts giving rise to the dispute shall constitute a waiver of the right
to assert the causative role of the defect or ambiguity in the plans or specifications concerning the dispute.
24. Indemnification for Professional Liability. To the fullest extent permitted by law, the Consultant shall
indemnify, and hold harmless the City and any and all of its officials, employees ("Indemnified Parties") from
and against any and all losses, liabilities, damages, costs and expenses, including reasonable attorney's fees
and costs which arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the
Consultant. In no event shall the cost to defend charged to Consultant, or any damages or expenses referenced
in this section owed to any of the indemnified parties, exceed Consultant's proportionate percentage of fault.
25. Non -Exclusive Contract. The City reserves the right to contract for the services listed in this proposal from other
consultants during the contract term.
26. Project Proposal Submittal. Upon completion of the project scoping meeting, the Consultant shall submit a proposed
workscope, compensation and schedule within 10 working days. The cost proposal shall include all costs including
miscellaneous direct cost items.
27. Standards. Documents shall conform to City Standards and City furnished templates shall be used.
28. Consultant Endorsement. Technical reports, plans and specifications shall be stamped and signed by the Consultant
where required.
29. Required Deliverable Products and Revisions. The Consultant will be required to provide documents addressing
all elements of the workscope. Plans shall be prepared using the City's standardized title blocks and coversheets. Draft
plans shall be submitted for review in full D (24x36) format. Specifications and bid documents shall conform to standard
City formats unless authorized. The City's current Standard Specifications and Engineering Standards must be
incorporated where applicable.
City staff will review any documents or materials provided by the Consultant and, where necessary, the Consultant will
respond to staff comments and make such changes as deemed appropriate. Submittals shall include the previous
marked up submittal (returned to the Consultant) to assist in the second review. Changes shall be made as requested
or a notation made as to why the change is not appropriate
Unless noted otherwise in the approved project work scope, consultant shall submit:
• 2 copies of the draft preliminary reports and as -built plans in hardcopy and unlocked PDF electronic file.
• 1 copy of the final preliminary reports, technical studies plus markups in hardcopy and unlocked PDF electronic file.
4 1 copy of the final signed and stamped as -built plans, specifications and estimates in hardcopy and unlocked Adobe
Acrobat electronic file.
a 1 copy of the final record drawings after construction
Draft reports and as -built plan submittals shall be submitted as paper copies. Final documents and record documents
shall be submitted as camera-ready original, unbound, each page printed on only one side, including any original
graphics in place and scaled to size, ready for reproduction AND one electronic copy submitted in Adobe Acrobatformat
including all original stamps and signatures.
Electronic files shall be submitted on CD and all files must be compatible with the Microsoft operating system. Each
CD must be clearly labeled and have a printed copy of the directory. Files may be emailed to the City in lieu of putting
them on CD.
30. Ownership of Materials. Upon completion of all work under this contract, ownership and title to all reports, documents,
plans, specifications, and estimates produced as part of this contract will automatically be vested in the City and no
further agreement will be necessary to transfer ownership to the City. The Consultant shall furnish the City all necessary
electronic and hard copies of data needed to complete the review and approval process.
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It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine readable
form, are intended for one-time use in the construction of the project for which this contract has been entered into.
The Consultant is not liable for claims, liabilities, or losses arising out of, or connected with the modification, or misuse
by the City of the machine-readable information and data provided by the Consultant under this agreement. Further,
the Consultant is not liable for claims, liabilities, or losses arising out of, or connected with any use by City of the project
documentation on other projects, except such use as may be authorized in writing by the Consultant.
31. Release of Reports and Information. Any reports, information, data, or other material given to, prepared by or
assembled by the Consultant as part of the work or services under these specifications shall be the property of the City
and shall not be made available to any individual or organization by the Consultant without the prior written approval of
the City.
The Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work
performed or to be performed under this contract without prior review of the contents thereof by the City and receipt of
the City's written permission.
32. Copies of Reports and Information. If the City requests additional copies of reports, drawings, specifications, or any
other material in addition to what the Consultant is required to furnish in limited quantities as part of the work or services
under these specifications, the Consultant shall provide such additional copies as are requested, and City shall
compensate the Consultant for the costs of duplicating of such copies at the Consultant's direct expense.
33. Attendance at Meetings and Hearings. As part of the workscope, and included in the contract price, is attendance
by the Consultant at public meetings to present and discuss its findings and recommendations. Consultant shall attend
as many "working" meetings with staff as necessary in performing workscope tasks.
34. Permit and Filing Fees. The Consultant shall procure all permits, and licenses, pay all charges and fees and file all
notices necessary as they pertain to the completion of the Consultant's work. The City will pay all application fees for
permits required for the completion of the project work. The City requires a 10 day notice to issue a check.
35. Requests for Review. The Consultant shall respond to all requests for submittal review or contractor RFI's within two
weeks of receipt of the information from the City.
36. Consultant Invoices. The Consultant shall deliver a monthly invoice to the City, itemized by project work phase or, in
the case of on -call contracts, by project title. Invoice must include a breakdown of hours billed and miscellaneous
charges and any sub -consultant invoices, similarly broken down, as supporting detail.
37. Payment. For providing services as specified in this Agreement, City will pay and Consultant shall receive
compensation in a total sum not to exceed the individual agreed upon project fee. Should the Consultant's designs,
drawings, specifications, or reports contain errors or deficiencies, the Consultant shall be required to correct them at no
increase in cost to the City.
For on -call services, the City will pay and the Consultant shall receive compensation as agreed to on a project by project
basis.
The Consultant shall be reimbursed for hours worked at the hourly rates attached to this agreement. Hourly rates
include direct salary costs, employee benefits, overhead and fee. In addition, the Consultant shall be reimbursed for
direct costs other than salary and vehicle cost that have been identified and are attached to this agreement. The
Consultant's personnel shall be reimbursed for per diem expenses at a rate not to exceed that currently authorized for
State employees under State Department of Personnel Administration rules.
Travel time from consultant's home office to job site shall not be billed to the City. Travel time between multiple city
projects may be billed in cases where Consultant is working on two or more City projects simultaneously.
38. Payment Terms. The City's payment terms are 30 days from the receipt of an original invoice and acceptance by the
City of the materials, supplies, equipment or services provided by the Consultant (Net 30).
The Consultant shall pay all sub -consultants within 10 calendar days from receipt of each payment made to the
Consultant by the City.
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39. Disadvantaged Business Enterprise (DBE) Use for Federally Funded Projects. This agreement is subject to Title
49, Part 26 Code of Federal Regulations entitled "Participation by Disadvantaged Business Enterprises in Department
of Transportation Financial Assistance Programs" for those projects which are federally funded. In order to ensure the
State Department of Transportation achieves its federally mandated statewide overall DBE goal, the City encourages
the participation of DBEs as defined in 49 CFR 26 in the performance of this agreement. The City will determine on a
project by project bases the extent to which a DBE can reasonably be expected to compete for the sub -consulting
opportunities in this agreement and will establish a project specific DBE percentage. The Consultant is responsible to
be fully informed regarding the requirements of 49 CFR, Part 26. Refer to the appendices in the RFQ for forms required
for DBE participation, which are required to be processed on a project by project basis
The Consultant shall notify the City of any changes to its anticipated DBE participation, maintain records of DBE usage
and complete and submit to the City the final report of DBE utilization prior to receiving final payment. Records shall
show the name and business address of each DBE and the total dollar amount actually paid to each.
The Consultant shall pay all sub -consultants within 10 calendar days from receipt of each payment made to the
Consultant by the City.
The Consultant shall carry out applicable requirements of Title 49 CFR 26 in the award and administration of US DOT
assisted agreements. Failure by the Consultant to carry out these requirements is a material breach of this agreement,
which may result in the termination of this agreement or such other remedy as the City deems appropriate.
40. Resolution of Disputes. Any dispute, other than audit, concerning a question of fact arising under this contract that
is not disposed of by agreement shall be decided by a committee consisting of the City's Project Manager and the City
Director of Public Works, who may consider written or verbal information submitted by the Consultant. Not later than
thirty days after completion of all deliverables necessary to complete the plans, specifications and estimate, the
Consultant may request review by the City Council of unresolved claims or disputes, other than audit, in accordance
with Chapter 1.20 Appeals Procedure of the Municipal Code.
Any dispute concerning a question of fact arising under an audit of this contract that is not disposed of by agreement,
shall be reviewed by the City's Chief Fiscal Officer. Not later than 30 days after issuance of the final audit report, the
Consultant may request a review by the City's Chief Fiscal Officer of unresolved audit issues. The request for review
must be submitted in writing.
Neither the pendency of a dispute, nor its consideration by the City will excuse the consultant from full and timely
performance in accordance with the terms of this contract.
41. Agreement Parties.
City: Manny Guzman
City of San Luis Obispo
919 Palm Street
San Luis Obispo, CA 93401
Consultant: Greg Chelini
MNS Engineers Inc
811 El Capitan, STE 130
San Luis Obispo, CA 93401
All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified
mail addressed as shown above.
42. Incorporation by Reference. City Request for Qualifications Specification No. 50410.2018CM, Consultant's proposal
dated 09/20/2018, are hereby incorporated in and made a part of this Agreement.
43. Amendments. Any amendment, modification or variation from the terms of this Agreement shall be in writing and shall
be effective only upon approval by the City Engineer.
44. Working Out of Scope. If, at any time during the project, the consultant is directed to do work by persons other than
the City. Project Manager and the Consultant believes that the work is outside of the scope of the original contract, the
Consultant shall inform the Project Manager immediately. If the Project Manager and Consultant both agree that the
work is outside of the project scope and is necessary to the successful completion of the project, then a fee will be
established for such work based on Consultant's hourly billing rates or a lump sum price agreed upon between the City
and the Consultant. Any extra work performed by Consultant without prior written approval from the City Project
Manager shall be at Consultant's own expense.
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45. Complete Agreement. This written agreement, including all writings specifically incorporated herein by reference,
shall constitute the complete agreement between the parties hereto. No oral agreement, understanding or
representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any
such oral agreement, understanding or representation be binding upon the parties hereto. For and in consideration of
the payments and agreements hereinbefore mentioned to be made and performed by City, Consultant agrees with City
to do everything required by this Agreement, the said specification and incorporated documents. Failure by the
Consultant to carry out the requirements of this Agreement is a material breach of this agreement which may result in
the termination of this Agreement or such other remedy as the City deems appropriate.
Authority to Execute Agreement. Both City and Consultant do covenant that each individual executing this agreement
on behalf of each party is a person duly authorized and empowered to execute Agreements for such party.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above
written.
CITY F AN LUIS OBISPO:
D rt Manager
r'1 � A� • G.�j M.`�1 v'
CONSU A
MNS En in s In
By: E .fir
Name of CAO/President
Its: CAO/President
Acegio.�
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