HomeMy WebLinkAboutItem #8CITY OF �►s..
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LADE LSINOKE
DREAM EXTREME,.
REPORT TO CITY COUNCIL
TO: HONORABLE MAYOR
AND MEMBERS OF THE CITY COUNCIL
FROM: GRANT M. YATES
CITY MANAGER
DATE: JULY 09, 2013
SUBJECT: PROFESSIONAL ENGINEERING SERVICES: RUSTY BEARDSLEY —
TRAFFIC ENGINEER CONTRACT
Recommendation
Approve the contract with Rusty Beardsley to perform duties as the City's Traffic
Engineer.
Background
On October 13, 2009, the City Council approved a Professional Services Agreement
with Mr. Rusty Beardsley to perform General Traffic Engineering Services under
contract with his company, RBI Traffic. The contract extended from October 13, 2009
through July of 2013 and was subject to an annual review. This position is necessary to
provide professional staffing for specialized work in the Engineering Division.
Discussion
When the contract for Traffic Engineer was considered and approved by City Council in
2009, City staff was in the process of backfilling the position that was left vacant due to
retirement. At that time, staff interviewed and supported the approval of the contract
with Rusty Beardsley as Traffic Engineer. Since that time, Rusty Beardsley has
performed his duties with the same efficiency and care as other members of the staff.
Mr. Beardsley has represented the City as our Traffic Engineer for the past 3 -years and
has developed productive relationships with residents, business owners, school district
staff and City staff.
AGENDA ITEM NO. 8
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Contract Staff — Beardsley
July 09, 2013
Page 2
His knowledge of traffic issues ranging from signal timing and coordination to
construction traffic control and traffic volume studies has provided staff with the support
needed to respond to residents and developers alike. Although Mr. Beardsley is
working in the City for two days per week, he is available by phone or e-mail the days
he is not at City Hall.
Mr. Beardsley possesses the required engineering license to perform his respective
duties, and he has grown into his position by meeting with residents, business owners,
school and water district representatives and being involved in projects around the City.
Per the Professional Services Agreement with Mr. Beardsley, Staff is requesting that the
City Council approve the use of him through RBI Traffic for a one (1) year contract with
the option for two (2) additional one (1) year extensions.
Fiscal Impact
Mr. Beardsley, as the City's Traffic Engineer, is paid through the general fund and traffic
safety fund.
Prepared by: Ken A. Seumalo
Director of Public Works
Approved by: Grant M. Yates
City Manager
Attachments: Contract: RBI Traffic
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AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement for Professional Services (the "Agreement "), dated for identification
purposes only as of July 9, 2013, by and between the City of Lake Elsinore, a municipal
corporation ( "City ") and William J `Rusty' Beardsley, RBI Traffic ( "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 per
fiscal year 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.
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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 Property. 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
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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 or termination 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.
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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
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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 sub consultants. 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 insureds 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.
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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: William J. 'Rusty' Beardsley, T.E.
7421 Mayfield Street
Corona, CA 92880
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.
C1
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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.
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 attorneys' fees.
24. Mediation. The parties agree to make a good faith attempt to resolve any disputes
arising out of this Agreement through mediation prior to 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
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this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
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)
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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: 2013 By:
ATTEST:
Virginia J. Bloom, City Clerk
APPROVED AS TO FORM:
Leibold, McClendon & Mann, P.C.
Barbara Z. Leibold, City Attorney
Robert E. Magee, Mayor
"CONSULTANT"
Dated: _ '2013 By:
William J. 'Rusty' Beardsley, T.E.
Attachments: Exhibit A - Scope of Services
Exhibit B - Fee Schedule
Exhibit C - Certificate of Exemption from Workers Compensation
Insurance
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EXHIBIT "A"
SCOPE OF SERVICES
City of Lake Elsinore
Traffic Engineering Services
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 representation made
by the consultant that he /she is specially trained, experienced, and competent to perform
the special services which will be required by this 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 designs for streets, traffic signals, traffic control
plans, layout of streets 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.
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.
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EXHIBIT "B"
SCHEDULE OF CHARGES
CONSULTING FEE SCHEDULE
Effective 7/9/2013
City Traffic Engineer (extension of staff) $90 per hour
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EXHIBIT "C"
CERTIFICATE OF EXEMPTION FROM WORKERS COMPENSATION INSURANCE
I 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 2013 at
California.
Consultant
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