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HomeMy WebLinkAbout2012-07-24 CC Agenda Item No.8CITY OF li LADE LSIAOR�E DREAM EXTREME. REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: THOMAS P. EVANS INTERIM CITY MANAGER DATE: JULY 24, 2012 SUBJECT: AGREEMENT WITH WALLACE AND ASSOCIATES TO PROVIDE PUBLIC WORKS INSPECTION SERVICES Recommendation Approve the use of Wallace and Associates to provide inspection services to the City of Lake Elsinore at the recommended rate. Background As a part of the City's regular work, the Engineering Division monitors construction activities both on the development sites as well as the City's Capital Improvement projects. It is the responsibility of the Public Works Department to provide professionals with the technical training and field experience to inspect these construction projects for compliance with City Standards and approved plans. In 2010 the City Council awarded a contract to Wallace and Associates to provide inspection services, that contract expires in October and staff is requesting it be renewed. Discussion The City of Lake Elsinore is experiencing an increase in activity in the Capital Improvement Program projects, encroachment permit projects and a steady stream of private development projects. Each of these activities requires a level of monitoring by an engineering construction inspector to ensure that approved plans and City Standards are being maintained. Because of the fluctuating nature of construction, the City employs one in -house inspector and contracts for additional staff as the workload increases. Considering the number of active projects currently in construction and the pending increase in number of CIP projects, Staff is requesting the Council to renew the contract with Wallace and Associates to provide one inspector to serve the City. AGENDA ITEM NO. 8 Page 1 of 18 Wallace & Associates July 24, 2012 Page 2 The City first contracted with Wallace & Associates in October of 2010. At that time, staff negotiated a 25% reduction in the proposed rate for inspection services. Over the past 2 -years the billable rate has not changed, Wallace & Associates has requested an increase of 3.2% increasing the hourly rate from $90 to $93 /hour. Mike Payment of Wallace & Associates has extensive experience in construction inspection and has performed his inspection duties with diligence and professionalism. Staff supports the request to increase the hourly rate by 3.2% from $90 /hour to $93 /hour. Fiscal Impact All services paid to Wallace and Associates have been budgeted through the Administration budget line item of the individual Capital Improvement Project. Prepared by: Ken A. Seumalo Director of Public Works Approved by: Thomas P. Evans Interim City Manag Attachment: Agreement Page 2 of 18 AGREEMENT FOR PROFESSIONAL SERVICES This Agreement for Professional Services (the "Agreement "), dated for identification purposes only as of July 24, 2012, by and between the City of Lake Elsinore, a municipal corporation ( "City ") and Wallace & Associates ( "Consultant "). RECITALS A. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement. B. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. C. City desires to retain Consultant to render professional consulting services and related work as set forth in this Agreement. AGREEMENT 1. Scope of Services. Consultant shall perform the services described on Exhibit A which is attached hereto and incorporated herein by reference. Consultant shall provide said services at the time, place, and in the manner specified in Exhibit A, subject to the direction of the City through its staff that it may provide from time to time. 2. Time of Performance. The services of Consultant are to commence upon execution of this Agreement and shall continue for a period of three (3) years subject to annual review by the City Council. 3. Compensation. Compensation to be paid to Consultant shall be in accordance with the Schedule of Charges set forth in Exhibit B, which is attached hereto and incorporated herein by reference. In no event shall Consultant's compensation exceed $150,000 without additional authorization from the City Manager. Payment by City under this Agreement shall not be deemed a waiver of defects, even if such defects were known to the City at the time of payment. 4. Method of Payment. Consultant shall submit monthly billings to City describing the work performed during the preceding month. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. City shall pay Consultant no later than 30 days after approval of the monthly invoice by City staff. 5. Extra Work. At any time during the term of this Agreement, City requests that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City. Extra work will be invoiced separately from services performed in accordance with the Scope of Services. Page 3 of 18 6. Termination. This Agreement may be terminated by the City immediately for cause or by either party without cause upon thirty (30) days' written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination. 7. Ownership of Documents. All plans, studies, documents and other writings prepared by and for Consultant, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notepad internal documents, shall become the property of the City upon payment to Consultant for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon written request. City acknowledges that any use of such materials in a manner beyond the intended purpose as set forth herein shall be at the sole risk of the City. City further agrees to defend, indemnify and hold harmless Consultant, its officers, officials, agents, employees and volunteers from any claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therein), arising out of the City =s use of such materials in a manner beyond the intended purpose as set forth herein. a. Licensing of Intellectual Propert y. This Agreement creates a nonexclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ( "Documents & Data "). Consultant shall require that all subcontractors agree in writing that City is granted a nonexclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. b. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs relating to project for which Consultant's services are rendered, or any publicity pertaining to the 2 Page 4 of 18 Consultant's services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 8. Consultant's Books and Records. a. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. b. Consultant shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address indicated for receipt of notices in this Agreement. d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment ortermination of Consultant's business, City may, by written request by any of the above -named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor -in- interest. 9. Independent Contractor. It is understood that Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. Consultant shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Consultant hereby expressly waives any claim it may have to any such rights. 10. Interests of Consultant. Consultant (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. 3 Page 5 of 18 Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant: a. will conduct research and arrive at conclusions with respect to his /her rendition of information, advice, recommendation or counsel independent of the control and direction of the City or of any City official, other than normal agreement monitoring; and b. possesses no authority with respect to any City decision beyond rendition of information, advice, recommendation or counsel. (FPPC Reg. 18700(a)(2).) 11. Professional Ability of Consultant. City has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise. 12. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations. 13. Licenses. Consultant represents and warrants to City that it has the licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Consultant to practice its profession. 14. Indemnity. Consultant agrees to defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therein), arising out of the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers. 15. Insurance Requirements. a. Insurance. Consultant, at Consultant's own cost and expense, shall procure and maintain, for the duration of the contract, the following insurance policies. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his /her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the ld Page 6 of 18 subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non -owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors or omissions which may arise from Consultant's operations under this Agreement, whether such operations by the Consultant or by its employees, subcontractors, or subconsultants. The amount of this insurance shall not be less than two hundred and fifty thousand dollars ($250,000) on a claims -made annual aggregate basis, or a combined single limit per occurrence basis. b. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best =s rating of no less than A:VII and shall be endorsed with the following specific language: i The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work or operations. ii. This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self- insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. 5 Page 7 of 18 iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents, or volunteers. vi. The insurance provided by this Policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City. C. Deductibles and Self- Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of such deductibles or self- insured retentions. d. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. 16. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to City: City of Lake Elsinore Attn: City Manager 130 South Main Street Lake Elsinore, CA 92530 If to Consultant: Wallace & Associates 1655 E 6t' Street, Suite A -4A Corona, CA 92879 17. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 18. Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. ro Page 8 of 18 19. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant and the subcontractors listed in Exhibit D. Consultant shall be fully responsible to City for all acts or omissions of any subcontractors. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express consent of the City. Consultant shall not subcontract any portion of the work to be performed under this Agreement except as provided in Exhibit D without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of those subcontractors. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 20. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 21. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 22. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. 23. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attomeys' fees. 24. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation priorto commencing litigation. The parties shall mutually agree upon the mediator and share the costs of mediation equally. It the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS /ENDISPUTE ( "JAMS ") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 25. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 7 Page 9 of 18 26. Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. 27. Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 28. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. (Signatures follow on next page) Page 10 of 18 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates set forth below. "CITY" CITY OF LAKE ELSINORE, a municipal corporation Dated: , 2012 By: ATTEST: City Clerk APPROVED AS TO FORM: Leibold, McClendon & Mann, P.C. Barbara Leibold, City Attorney Brian Tisdale, Mayor "CONSULTANT" Dated: , 2012 By: Wallace & Associates Attachments: Exhibit A - Scope of Services Exhibit B - Fee Schedule Exhibit C - Certificate of Exemption from Workers Compensation Insurance Page 11 of 18 Page 12 of 18 EXHIBIT "A" SCOPE OF SERVICES Scope of Services — Engineering Consultant Consultant agrees to provide project management and related consulting services for the City of Lake Elsinore Public Works Department as directed by the Director of Public Works and /or city Engineer as set forth below. It is understood based on the representations made by the consultant that he /she is specially trained, experienced, and competent to perform the special services which will be required bythis scope of services. In addition, it is understood that the consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services and the terms and conditions described herein: 1. Review and process Engineering design for streets, storm drains or public works projects as assigned by the Director of Public Works or City Engineer. 2. Prepare or cause to be prepared by processing, managing and monitoring the preparation of any County, State or Federal documents related to project development or processing. 3. Prepare interoffice memoranda, prepare routine staff reports and recommendations to the Director of Public Works or City Engineer. 4. Respond to inquiries, both orally and in writing, interpret Engineering policies, state laws and local ordinances, explain division and department procedures. 5. Perform field inspections, and attend meetings or other public functions as an ex- officio member of City Staff. 6. Consultant shall provide his /her own automobile and pager /cell phone. 7. If determined necessary, provide assistance at the public counter. Page 13 of 18 Page 14 of 18 EXHIBIT "B" SCHEDULE OF CHARGES Page 15 of 18 Page 16 of 18 EXHIBIT "B" FEE SCHEDULE Rate Schedule CITY OF _ .LAKE LSIIYORE �V_ DREAM EXTREME SOUTHERN CALIFORNIA REGION HOURLY FEE SCHEDULE Rates effective July 1 2012 through June 30, 2012 City of Lake Elsinore POSITION BILLING RATES Principal -in- Charge $ 135.00 to $ 200.00 Project Manager /Construction Manager $ 115.00 to $ 175.00 Senior Engineer / Resident Engineer $ 110.00 to $ 145.00 Project Engineer $ 110.00 to $ 135.00 Assistant RE / Office Engineer $ 110.00 to $ 125.00 Street Superintendant $ 100.00 to $ 125.00 Senior /Construction Inspector $ 98.00 to $ 125.00 Lake Elsinore Inspector $ 93.00 Project Administrator $ 65.00 to $ 90.00 Administrative Assistant $ 55.00 to $ 75.00 Rates include miscellaneous related costs: vehicle, cell phone, digital camera and standard tools and equipment. All other direct expenses will be billed at cost plus 15 %. All Subconsultant rates will be marked up by a rate of 15 percent. The above ranges for Construction Inspector are in compliance with SB1999 pertaining to prevailing wage requirments. A shift which commences after 2:00pm or before 4:00am, during any twenty -four hour period is subject to a twelve and one -half percent (12.5 %) differential. For multi year contract positions we request annual cost of living increases that are consistent with City policies and procedures. Inspection staff hours shall be governed by state laws. .allace &-ASSaciates consulting, Inc. Page 17 of 18 EXHIBIT "C" CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE hereby certify that in the performance of the work for which this Agreement is entered into, I shall not employ any person in any manner so as to become subject to the Workers' Compensation Laws of the State of California Executed on this day of , 2012 at California. Consultant Page 18 of 18