HomeMy WebLinkAboutWater Systems Consulting - Wastewater Collection Infrastructure Renewal Proj 6.24.13AGREEMENT
AGREEMENT is made and entered into in the City of San Luis Obispo on
13 by and between the CITY OF SAN LUIS OBISPO, a municipal corporation,
referred to as City, and WATER SYSTEMS CONSULTING, INC., hereinafter referred to as
WITNESSETH
WHEREAS, on March 20, 2013, City requested proposals for the Wastewater Collection
lnfrastructure Renewal Strategy Project per Specification No. 9lll7.
WHEREAS, pursuant to said request, Consultant submitted a proposal that was accepted by City
for said services.
NOW THEREFORE, in consideration of their rnutual 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 conrpletion ofsaid services.
2. Start and Gompletion of Work. Work on this project shall begin within five calendar days after
contract execution. Individual projects shall be completed in accordance with approved project
schedules.
3. 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 tirne 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, 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 ten calendar day notice of time thereafter in which to perform
said work or cure the defrciency.
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 begiruring date in which the breach occurs up to the day it received the City's Notice of
Termination, minus any offset from such payrnent 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 Agreernent paynent
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 reseryes the right to delay any such payment until completion or confirmed abandonrnent of
the project, as may be detennined 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
cornpensation quoted in its proposal.
If, at any time during the term of the contract, the City determines that the proposed work is not
feasible due to fuirding shortages or unforeseen circurnstances, the City reserves the right to tenninate
the contract. Consultant will be paid cornpensation due and payable to the date of termination.
5. Ability to Perform. The Consultant warrants that it possesses, or has arrauged through subcontracts,
all capital and other equipment, labor, materials, and licenses necessary to carry out and cornplete the
work hereunder in compliance with any and all applicable federal, state, county, city, and special
district laws, ordinances, and regulations.
6. Sub-contract Provisiohs. 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. Gontract 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.
8. lnspection. The Consultant shall fumish 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 conftact. 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, accourting 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 govemment. Copies
shall be furnished if requested.
10. Gonflict 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 perfionning this work is an offrcer 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 Unlavvful 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. Govenant 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; 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 w¡th Laws and Wage Rates. The Consultant shall keep itself fully infonned 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 v/age 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 conhact prices shall include fuIl compensation for all taxes that the
Consultant is required to pay.
15. Permits and Licenses. The Consultant shall procure all permits and licenses, pay all charges and
fees, and give all notices necessary.
16. Safety Provisions. The Consultant shall conform to the rules and regulations pertaining to safety
established by OSHA and the Califomia 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, fumish, erect and
maintain such fences, temporary railings, barricades, lights, sigrrs 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 Gity 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. lmmigration Act of 1986. The Colsultant 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 Imrnigration Refonn and Control Act of 1986 and other applicable laws shall be
ernployed 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.
2l.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. ln preparing its
proposal, the Consultant and all sub-consultants named in its proposal shall bear sole responsibility
for proposal preparation errors resulting frorn 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 subrnittal. 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 specifìcation 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.
ln 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 grving 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
conceming the dispute.
22. lndemnification for Profess¡onal Liability. To the fullest extent permítted by løw,
Consultant shall índemnífy, protect, defend und hold harmless Cíly and any and all of íts officíøls,
employees and agenls ("Indemnified Pnrties") ftom ønd agaínst øny and all losses, líabíIitíes,
damages, costs und expenses, including altorney's fees snd costs which arise out of, perløin to, or
relste to the neglígence, recklessness, or wíIlful mísconduct of the ConsultanL
23. Standards. Documents shall conform to City Standards and City fumished templates shall be used.
24. Gonsultant Endorsement. Technical reports, plans and specifications shall be stamped and
signed by the Consultant where required.
25. Required Deliverable Products and Revisions. The Consultant will be required to provide
draft and final documents addressing all elernents of the workscope. 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.
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.
26. 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 fumish 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 infonnation and data provided by the
Consultant under this agreønent. Further, the Consultant is not liable for clairns, 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.
27. Release of Reports and lnformation. 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 properly 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 Cify and receipt of the City's written permission.
28. Gopies of Reports and Informat¡on. 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.
29. Attendance at Meetings and Hear¡ngs. Consultant shall attend as many "working" meetings
with staff as necessary to accomplish the workscope tasks. Consultant shall attend workshops with the
public, and City commission, committee or Council meetings as identified in the individual project
scoping.
30. 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 l0 day notice to issue a check.
31. Gonsultant Invoices. The Consultant shall deliver a monthly invoice to the City, iternized by
project title. Invoice must include a breakdown of hours billed and miscellaneous charges and any
sub-consultant invoices, sirnilarly 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 the individual agreed upon project fee.
Should the Consultant's integration services 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 rnonthly pa¡rments, on an individual project basis, not to exceed:
The Consultant shall be reimbursed for hours worked at the hourly rates attached to this agreernent.
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). The Consultant shall pay all sub-consultants within l0 calendar days from receipt of each
payment made to the Consultant by the City.
34. Resolution of Disputes. Any dispute, other than audit, concerning a question of fact arising under
this contract that is not disposed of by agreernent shall be decided by a comrnittee 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 offact arising under an audit ofthis 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. Agreement Parties.
City: Carrie Mattingly
City of San Luis Obispo
879 Morro Street
San Luis Obispo, CA 93401
Consultant:
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.
36. lncorporation by Reference. City Request for Proposal Specification No. 91117 and
Consultant's proposal dated April 18. 2013, are hereby incorporated in and made a part of this
Agreement. To the extent that any term or condition of Consultant's proposal conflicts with the
City's Request for Proposal or this Agreement, the terms and conditions set forlh in the City's
documents shall prevail unless expressly agreed otherwise by the parties in writing.
37. 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. 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 cornpletion 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 perfonned by Consultant
without prior written approval from the City Project Manager shall be at Consultant's own expense.
38. Complete Agreement. This written agreement, including all writings specifically incorporated
herein by reference, shall constitute the complete agreernent 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 rnaterial 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.
CITYOF SANLUIS OBISPO:
City Manager Clerk
APPROVED AS TO TANT:
Dietrick, City Attorney