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HomeMy WebLinkAboutWarren R McClung, ASLA, 2010-10-23AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES [Design Professional] This Agreement, made and entered into this,21 day of , 2010 ("Effective Date"), by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and Warren R. McClungq ASLA, a sole proprietorship, organized and in good standing under the laws of the state of California, hereinafter referred to as "Consultant". RECITALS This Agreement is predicated on the following facts: a. City requires consulting services related to bidding and construction for Riverside Park Phase One. b. Consultant represents that it has the qualifications, skills, experience and properly licensed to provide these services, and is willing to provide them according to the terms of this Agreement. C. City and Consultant agree upon the Scope-of-Work and Work Schedule attached hereto as Attachment "A", describing contract provisions for the project and setting forth the completion dates for the various services to be provided pursuant to this Agreement. TERMS OF AGREEMENT 1.0 DESCRIPTION OF PROJECT 1.1 The Project is described in detail in the attached Scope-of-Work (Attachment "A") 2.0 SCOPE OF SERVICES 2.1 As set forth in Attachment "A". 2.2. Additional Services. Additional services, if any, shall only proceed upon written agreement between City and Consultant. The written Agreement shall be in the form of an Amendment to this Agreement. 3.0 CONDUCT OF WORK 3.1 Time of Completion. Consultant shall commence performance of services as required by the Scope-of-Work and shall complete such services by December 31, 2011. Consultant shall complete the work to the City's reasonable satisfaction, even if contract disputes arise or Consultant contends it is entitled to further compensation. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. For the performance of the professional services of this Agreement, Consultant shall be compensated on a time and expense basis not to exceed a guaranteed maximum dollar amount of $49,000.00. Labor charges shall be based upon hourly billing rates for the various classifications of personnel employed by Consultant to perform the Scope of Work as set forth in the attached Attachment B, which shall include all indirect costs and expenses of every kind or nature, except direct expenses. The direct expenses and the fees to be charged for same shall be as set forth in Attachment B. Consultant shall complete the Design - Pro[SvesAgreement- - September 2010 PAGE 1 OF 7 Scope of Work for the not-to-exceed guaranteed maximum, even if actual time and expenses exceed that amount. 4.2 Changes. Should changes in compensation be required because of changes to the Scope-of- Work of this Agreement, the parties shall agree in writing to any changes in compensation. "Changes to the Scope-of-Work" means different activities than those described in Attachment "A" and not additional time to complete those activities than the parties anticipated on the date they entered this Agreement. 4.3 Sub-contractor Payment. The use of sub-consultants or other services to perform a portion of the work of this Agreement shall be approved by City prior to commencement of work. The cost of sub-consultants shall be included within guaranteed not-to-exceed amount set forth in Section 4.1. 4.4 Terms of Payment. Payment to Consultant for services rendered in accordance with this contract shall be based upon submission of monthly invoices for the work satisfactorily performed prior to the date of invoice less any amount already paid to Consultant, which amounts shall be due and payable thirty (30) days after receipt by City. For tasks being executed under a NTE Fee budget, the invoices shall provide a description of each item of work performed, the time expended to perform each task, the fees charged for that task, and the direct expenses incurred and billed for. For tasks being executed under a fixed fee, invoices shall be based on a percentage of completion basis with a description of work accomplished. Invoices shall be accompanied by documentation sufficient to enable City to determine progress made and the expenses claimed. 5.0 ASSURANCES OF CONSULTANT 5.1 Independent Contractor. Consultant is an independent contractor and is solely responsible for its acts or omissions. Consultant (including its agents, servants, and employees) is not City's agent, employee, or representative for any purpose. It is the express intention of the parties hereto that Consultant is an independent contractor and not an employee, joint venturer, or partner of City for any purpose whatsoever. City shall have no right to, and shall not control the manner or prescribe the method of accomplishing those services contracted to and performed by Consultant under this Agreement, and the general public and all governmental agencies regulating such activity shall be so informed. Those provisions of this Agreement that reserve ultimate authority in City have been inserted solely to achieve compliance with federal and state laws, rules, regulations, and interpretations thereof. No such provisions and no other provisions of this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Consultant and City. Consultant shall pay all estimated and actual federal and state income and self-employment taxes that are due the state and federal government and shall furnish and pay worker's compensation insurance, unemployment insurance and any other benefits required by law for himself and his employees, if any. Consultant agrees to indemnify and hold City and its officers, agents and employees harmless from and against any claims or demands by federal, state or local government agencies for any such taxes or benefits due but not paid by Consultant, including the legal costs associated with defending against any audit, claim, demand or law suit. Design - ProlSvesAgreemem- - September 2010 PAGE 2 OP 7 Consultant warrants and represents that it is a properly licensed professional or professional organization with a substantial investment in its business and that it maintains its own offices and staff which it will use in performing under this Agreement. 5.2 Conflict of Interest. Consultant understands that its professional responsibility is solely to City. Consultant has no interest and will not acquire any direct or indirect interest that would conflict with its performance of the Agreement. Consultant shall not in the performance of this Agreement employ a person having such an interest. If the City Manager determines that the Consultant has a disclosure obligation under the City's local conflict of interest code, the Consultant shall file the required disclosure form with the City Clerk within 10 days of being notified of the City Manager's determination. 6.0 INDEMNIFICATION 6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2 Consultant shall not begin work under this Agreement until it procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage - Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. 4. Errors and Omissions liability insurance appropriate to the consultant's profession. Architects' and engineers' coverage is to be endorsed to include contractual liability. B. Minimum Limits of Insurance Consultant shall maintain limits no less than: General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. Design - ProtSvcsAgreement- - September 2010 PAGE 30P7 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. 4. Errors and Omissions liability: $1,000,000 per eGGUFFGRGe claim. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: General Liabilitv and Automobile Liability Coverages a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the Consultant, products and completed operations of the Consultant, premises owned, occupied or used by the Consultant, or automobiles owned, hired or borrowed by the Consultant for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope-of-protection afforded to the City, its officers, officials, employees or volunteers. b. The Consultant's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from Consultant's performance of the work, pursuant to this Agreement. 3. Professional Liability Coverage Design - ProtSvcsAgreement- - September 2010 PAGE 4 OF 7 If written on a claims-made basis, the retroactivity date shall be the effective date of this Agreement. The policy period shall extend from 12/31/11 to 12/31/12. 4. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A- for financial strength, AA for long-term credit rating and AMB-1 for short-term credit rating. F. Verification of Coverage Consultant shall furnish the City with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. All Certificates and Endorsements are to be received and approved by the City before Consultant begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If Consultant fails to provide the coverages required herein, the City shall have the right, but not the obligation, to purchase any or all of them. In that event, after notice to Consultant that City has paid the premium, the cost of insurance may be deducted from the compensation otherwise due the contractor under the terms of this Contract. G. Subcontractors Consultant shall include all sub-contractors or sub-consultants as insured under its policies or shall furnish separate certificates and endorsements for each sub-contractor or sub-consultant. All coverage for sub-contractors or sub-consultants shall be subject to all insurance requirements set forth in this Paragraph 6.1. 6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, Consultant agrees, for the full period of time allowed by law, surviving the termination of this Agreement, to indemnify the City for any claim, cost or liability that arises out of, or pertains to, or relates to any negligent act or omission or the willful misconduct of Consultant and its agents in the performance of services under this contract, but this indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by the City, or arising from the active negligence of the City. "Indemnify," as used herein includes the expenses of defending against a claim and the payment of any settlement or judgment arising out of the claim. Defense costs include all costs associated with defending the claim, including, but not limited to, the fees of attorneys, investigators, consultants, experts and expert witnesses, and litigation expenses. Design- ProlSvcsAgreement- - September 2010 PAGE 5 OE 7 References in this paragraph to City or Consultant, include their officers, employees, agents, and subcontractors. 7.0 CONTRACT PROVISIONS 7.1 Documents and Ownership of Work. All documents furnished to Consultant by City and all documents or reports and supportive data prepared by Consultant under this Agreement are owned and become the property of the City upon their creation and shall be given to City immediately upon demand and at the completion of Consultant's services at no additional cost to City. Deliverables are identified in the Scope-of-Work, Attachment "A". All documents produced by Consultant shall be furnished to City in digital format and hardcopy. Consultant shall produce the digital format, using software and media approved by City. If the City uses documents prepared by Consultant for a different site or project than the one for which they are prepared, it will indemnify Consultant for any claim, expense or liability arising out of such use. 7.2 Governing Law. Consultant shall comply with the laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. The interpretation and enforcement of this Agreement shall be governed by California law and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 7.3 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments set forth the entire understanding between the parties. 7.4 Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 7.5 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 7.6 Assignment. Consultant's services are considered unique and personal. Consultant shall not assign, transfer, or sub-contract its interest or obligation under all or any portion of this Agreement without City's prior written consent. 7.7 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. 7.8 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because funds are no longer available to pay Consultant for services provided under this Agreement; or 3) City has abandoned and does not wish to complete the project for which Consultant was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the breaching party fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to Consultant. City shall pay the Consultant only for services performed and expenses incurred as of the effective termination date. In such event, as a condition to payment, Consultant shall provide to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Consultant under this Agreement. Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder, Design - ProfSvcsAgreement- - September 2010 PACE 6 OF 7 subject to off-set for any direct or consequential damages City may incur as a result of Consultant's breach of contract. 7.9 Duplicate Originals. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. When so signed, each such document shall be admissible in administrative or judicial proceedings as proof of the terms of the Agreement between the parties. 8.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally delivered or deposited in the mail (certified or registered) addressed to the parties as follows: CITY OF UKIAH DEPT. OF COMMUNITY SERVICES 300 SEMINARY AVENUE UKIAH, CALIFORNIA 95482-5400 WARREN R. MCCLUNG, ASLA LANDSCAPE ARCHITECT CA REG. #4382 11666 SERENA COURT SONORA, CA 95370 9.0 SIGNATURES ESS WHEREOF, the parties have executed this Agreement the Effective Date: CONSULTAN BY: PRINT NAME: S~& . M -JV1 r IRS IDN Number CITY OF UKIAH BY: t-c-ti 6C11TY MANAGER /0/& //,o Date /O ~i3 -©/v Date ATTEST (CITY CLERK 10-g3- Date Design - ProtSvesAgreemem- -September 2010 PAGE 7 OP 7 Warren R. McClung, ASLA Land Planning - Site Design a Landscape Architecture ATTACHMENT TO: Agreement between City of Ukiah and Warren R. McClung Riverside Park Phase One Date of Agreement: PROJECT UNDERSTANDING-The following scope of services and estimated fee (see Attachment "B") are to provide bidding and construction related services for the two construction contracts-the "Rough Grading" project and the "Trails Construction and Revegetation" project, which are part of Riverside Park Phase One. Construction drawings, technical specifications, and bid documents are complete for the Rough Grading project and it is currently out to bid. Construction drawings for the Trails project are currently being finalized by RRM Design Group under an existing consultant agreement; however, it is my understanding that preparation of the technical specifications and bid documents for this project will be part of this scope of service. Additionally, it is my understanding that the City wishes to retain Warren R. McClung (WRM) to provide bidding and construction phase services for both projects. SCOPE OF SERVICES-Below is an outline of services proposed to be provided as appropriate for each of the construction projects. Attachment "B" of this Agreement outlines the specific contract tasks and associated fees for providing this scope of services as appropriate to each of the projects. A. ' BID DOCUMENT PREPARATION TRAILS AND REVEGETATION PROJECT- WRM will prepare the Technical Specifications for this project. These specifications will support the Construction Drawings prepared by RRM Design Group. In preparing the technical specifications, WRM will coordinate with Ann Baker Landscape Architecture (ABLA). WRM will work closely with City staff to integrate the City's standard bid and contract forms with the Drawings and Specifications to form a full set of Bid Documents. WRM will then provide these documents in an electronic form suitable for the City to publish for bidding purposes. B. BIDDING PHASE SERVICES-The specific services that WRM will provide include the following: 1. Attend a pre-bid meeting and prepare a meeting summary; 2. Log Bidder questions and prepare addenda in response as may be necessary, e 11666 Serena Court • Sonora, CA 95370 ■ (209) 840-1198 Attachment "A" Scope of Services Riverside Park Phase One Page 2 of 3 C. CONSTRUCTION PHASE SERVICES The City understands that construction observation by a design professional is an integral part of the construction process. WRM's involvement during construction is in addition to, not a substitute for, the daily construction inspections, testing, and management executed by the City or their designee. WRM will work with the City to establish a scope of construction phase services that is appropriate to the level of construction. At a minimum, these services should include: 1. Attending pre-construction conferences; 2. Reviewing Contractor submittals; 3. Attending project meetings; 4. Visiting the site to observe construction; 5. Responding to Requests for Information (RFI's); 6. Issuing Supplemental Instructions and Work Directive Changes; 7. Reviewing Change Order Requests; Reviewing Applications for Payment; and, 9. Consulting with City staff as requested. III. CLIENT RESPONSIBILITIES The City agrees to the following: A. Designate City's project manager through whom all direction to WRM will be communicated. Provide a Geothechnical testing required for compliance with Contract Documents. C. Provide inspection and testing services required for compliance with the Contract Documents. IV. SCOPE LIMITATIONS AND EXCLUSIONS A. CONSTRUCTION PHASE SERVICES LIMITATIONS Site visits and observations are not intended to be an exhaustive check or a detailed inspection of the Contractor's work but rather are to allow WRM to become generally familiar with the Work in progress and to determine, in general, if the Work is proceeding generally in accordance Land Planning • Site Design o Landscape Architecture` y °i't r CA i~i~,~b ' 1•c ~fi~ i dw~ Attachment "A" Scope of Services Riverside Park Phase One Page 3of3 with the Contract Documents. In providing services during construction, WRM shall not supervise, direct or have control over the Contractor's work nor have any responsibility for the construction means, methods, techniques, sequences or procedures selected by the Contractor nor for the Contractor's safety precautions or programs in connection with the Work. These rights and responsibilities are solely those of the Contractor. Further, WRM shall not be responsible for any acts or omissions of the Contractor, subcontractor, any entity performing any portion of the Work, or any agents or employees of any of them. WRM does not guarantee the performance of the Contractor and shall not be responsible for the Contractor's failure to perform its work in accordance with the Contract Documents or any applicable laws, codes, rules, or regulations. B. EXCLUSIONS The following are specifically excluded from the scope of services: 1. Geotechnical Investigations 2. Hazardous Materials Investigations and Remediation 3. Construction Management 4. Title Reports 5. Environmental Impact Reports ` Land Planning • Site Design • Landscape Architecture Warren R. McClung, ASLA Land Planning - Site Design a Landscape Architecture ATTACHMENT TO: Agreement between City of Ukiah and Warren R. McClung Riverside Park Phase One Date of Agreement: CONTRACT TASKS AND COMPENSATION The following are the specific tasks and associated fees for providing the services described in Attachment "A" as applied to the two specific project. See "Fee Notes" for description of how each of the types of fees quoted will be billed. The Client agrees to compensate WRM as follows: Task 1 ROUGH GRADING PROJECT 1.01 Bidding Phase Services NTE Fee Budget(B): $2,000 Per City's request, WRM began providing bidding phase services prior to execution of this Agreement. The above fee budget includes charges for those services. This Agreement memorializes the City's verbal request; hence, these services will be considered a part of the Agreement. 1.02 Construction Phase Services NTE Fee Budget(B): $7,000 This anticipates a construction period of 4 weeks to be completed by November 1, 2010. Task 2 TRAILS AND REVEGETATION PROJECT 2.01 Bid Document Preparation ............................................Fixed Fee(A) $4,000 2.02 Bidding Phase Services NTE Fee Budget(B): $9,500 (Incl. Bidder Prequalification) In addition to the typical bidding phase services described in Attachment "A" this fee estimate includes a time allocation for assisting the City in conducting a pre-qualification process for prospective bidders. 2.03 Construction Phase Services NTE Fee Budget(B): $22,000 This task anticipates a core construction period of 16 weeks completed during the spring and summer of 2011. The core construction period 11666 Serena Court • Sonora, CA 95370 • (209) 840-1198 EXHIBIT 1 TO AT RIVERSI TCHMENT "B" - FEE ESTIMATE BREAKDOWN DE PARK Staff arren McClung Lan Design dscape Architect #4382 .-Architecture Position Principal Landscape Architect Project Role Principal-in-Charge TASK TOTALS PHASE TOTALS Hourly Rate $125.00 TASK DESCRIPTION WRM Task 1 ROUGH GRADING PROJECT 1.01 BIDDING PHASE SERVICES $ 2,000.00 1.01.01 Pre-bid Meeting 8.00 $ 1,000.00 1.01.02 Pre are Addenda 8.00 $ 1,000.00 HOURS PER PERSON PER PHASE 16.00 1.02 CONSTRUCTION PHASE SERVICES $ 7,000.00 1.02.01 Pre-construction Meeting 8.00 $ 1,000.00 1.02.02 Site Visits - 4 32.00 $ 4,000.00 1.02.03 Submittal Review 8.00 $ 1,000.00 1.02.04 Substantial Completion Walk Through 8.00 $ 1,000.00 FEE ESTIMATE Riverside Park_FEE_EST-01_Rev-01.xls: 10/12/2010, 7:01 PM PAGE 1 OF 2 EXHIBIT 1 TO AT RIVERSI BREAKDOWN TCHMENT "B" - FEE ESTIMATE DE PARK PHASE ONE Staff Land Planni Warren McClung Lan ng - Site Design dscape Architect #4382 Landscape Architecture Position Principal Landscape Architect Project Role Principal-in-Charge TASK TOTALS PHASE TOTALS Hourly Rate $125.00 TASK DESCRIPTION WRM Task 2 TRAILS AND REVEGETATION PROJECT 2.01 PREPARE BIDDING DOCUMENTS $ 4,000.00 2.01.01 Prepare s ecifications 32.00 $ 4,000.00 2.02 BIDDING PHASE SERVICES $ 9,500.00 2.02.01 Contractor Pre qualification Process 40.00 $ 5,000.00 2.02.02 Pre-bid Meeting 8.00 $ 1,000.00 2.02.03 Receive Questions 16.00 $ 2,000.00 2.02.04 Prepare Addenda 8.00 $ 1,000.00 2.02.05 Tabulate Bids 4.00 $ 500.00 2,03 CONTRUCTION PHASE SERVICES $ 22,000.00 2.03.01 Pre-construction Meeting 8.00 $ 1,000.00 2.03.02 Site Visits - 14 112.00 $ 14,000.00 2.03.03 Substantial Completion Walk Through 8.00 $ 1,000.00 2.03.04 Submittal Review 16.00 $ 2,000.00 2.03.05 RFI's 32.00 $ 4,000.00 REIMBURSABLE EXPENSE BUDGET $ 4,500.00 TOTAL HOURS AND FEE ESTIMATE 11 49,000.00 NOTE: The above estimate of hours is intended only to illustrate how the fee estimates were derived. Billing for tasks provided on a Time and Expense NTE or hourly basis will be based on actual hours incurred which may vary from the hours estimated for each task and subtask. Fixed fee tasks will be billed based on percentge of completion regardless of the number of hours incurred. FEE ESTIMATE Riverside Park_FEE_EST-01_Rev-01.xis: 10/12/2010, 7:01 PM PAGE 2 OF 2