HomeMy WebLinkAboutEnvironmental Data Solutions 4.10.13AGREEMENT
THIS AGREEMENT is made and entered into in the City of San Luis Obispo on 0-m -/3 by and
between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and
Environmental Data Solutions, hereinafter referred to as Consultant.
WITNESSETH
WHEREAS, on November 14, 2012, the City of San Luis Obispo requested proposals for a Volumetric
Survey of Whale Rock Reservoir per Specification No. 91078.
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 30 calendar days after contract
execution and shall be completed within 120 calendar days thereafter.
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.
4. 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, the City may notify the Consultant in writing of such defect or failure
to perform. This notice must 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 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
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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 or unforeseen circumstances, the City reserves the right to terminate the contract. Consultant will be
paid compensation due and payable to the date of termination.
5. 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.
6. 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.
7. 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.
B. 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.
9. 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.
10. 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 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.
11. 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.
12. 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 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;
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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.
13. Compliance with Laws and Wage Rates. The Consultant shall keep itself fully informed of and shall 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.
14. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Consultant is
required to pay.
15. 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.
16. Safety Provisions. The Consultant shall conform to the rules and regulations pertaining to safety established
by OSHA and the California Division of Industrial Safety.
17. 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.
18. 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.
19. 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.
20. 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.
21. Accuracy of Specifications. The specifications for this project 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 these 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.
22. Indemnification for Professional Liability. To the fullest extent permitted by law, the Consultant shall
indemnify, protect, defend and hold harmless the City and any and all of its officials, employees and
agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and
expenses, including attorney's fees and cost which arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the Consultant.
23. Non -Exclusive Contract. The City reserves the right to contract for the services listed in this proposal from
other consultants during the contract term.
24. Standards. Documents shall conform to City Standards and City furnished templates shall be used.
25. Consultant Endorsement. Technical reports, plans and specifications shall be stamped and signed by the
Consultant where required.
26. Required Deliverable Products and Revisions. The Consultant will be required to provide documents
addressing all elements of the workscope. Plans shall be prepared using City's standardized title blocks and
coversheets. Draft plans may be submitted for review using either the full D (24x36) format or a reduced 11x17
format. Consultant shall ensure that drawings and notes are clearly legible if using the reduced 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.
Draft reports and plan submittals shall be submitted as paper copies.
Final 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 Acrobat format including all original stamps and signatures
In the event the City will be completing the Record Drawings, the final plans will also be required to be
submitted in AutoCAD
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.
27. 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 copies of data needed to complete the review and approval process.
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
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any use by City of the project documentation on other projects, except such use as may be authorized in writing
by the Consultant.
28. 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 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.
29. 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.
30. Attendance at Meetings And Hearings. As part of the workscope and included in the contract price is
attendance by the Consultant at up to one public meeting to present and discuss its findings and
recommendations. Consultant shall attend as many "working" meetings with staff as necessary in performing
workscope tasks.
31. 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.
32. Payment. For providing services as specified in this Agreement, City will pay and Consultant shall receive
therefore compensation in a total sum not to exceed $34,200.00. Should the Consultant's designs, drawings or
specifications contain errors or deficiencies, the Consultant shall be required to correct them at no increase in
cost to the City.
Progress payments shall be made on a monthly basis as invoiced by the Consultant for expenses incurred with
cumulative monthly payments not to exceed 95% prior to submittal of final documents.
The 5 percent retention until completion of construction shall be released upon completion of design if the City
fails to authorize the advertising for construction within two months following the acceptance of a complete final
submittal by the Consultant.
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.
33. 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).
34. 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 Finance and Information Technology, 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.
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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.
35. 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." 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 has determined
that DBE can reasonably be expected to compete for the sub -consulting opportunities in this agreement and
has established a DBE advisory percentage of nla. The Consultant is responsible to be fully informed
regarding the requirements of 49 CFR, Part 26. Participation of DBE's in the specified percentage is not a
condition of award.
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.
36. Agreement Parties.
City: Katie Lichtig, City Manager;
Secretary, Whale Rock
Commission
919 Palm Street
San Luis Obispo, CA 93401
Consultant: James Kulpa
Environmental Data Solutions
818 Fifth Avenue, Suite 208
San Rafael, CA 94901
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.
37. Incorporation by Reference. City Request for Proposal Specification No. 91078 and Consultant's proposal
dated are hereby incorporated in and made a part of this Agreement.
38. 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.
39. 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.
40. 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
Whale Rock Reservoir Volumetric Survey Page 6 of 26
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.
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 OF
Rock
APPROV TO ORM:
Christine Dietrick, City Attorney
CONSULTANT:
�l /J1�.iil 71AtiCptL
By:
ATTEST
Maeve Kennedy G imes, City Cler ,
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