HomeMy WebLinkAboutPower Engineers 2018-12-03COU No. 1819087
AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES
[Design Professional]
This Agreement, made and entered into this 3rd day of December, 2018 ("Effective Date"), by
and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and POWER
Engineers, Incorporated, a corporation organized and in good standing under the laws of the state of
Idaho, hereinafter referred to as "Consultant".
RECITALS
This Agreement is predicated on the following facts:
a. City requires consulting services related to providing general engineering services as needed
for the City's Electric Utility Department.
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. 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 $350,000. 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
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 Tess any amount already paid to Consultant, which
amounts shall be due and payable thirty (30) days after receipt by City. 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. 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.
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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. 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 as set forth on the following:
1. Insurance Services Office ("ISO) Commercial General Liability Coverage Form
No. CG 20 10 04 13 and Commercial General Liability Coverage — Completed
Operations Form No. CG 20 37 04 13.
2. ISO Form No. CA 0001 (Ed. 03/06) covering Automobile Liability, Code 1 "any
auto" or Code 8, 9 if no owned autos and endorsement CA 2033 (10/01).
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:
1. 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.
Contract 1819087
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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 occurrence.
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 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:
1. General Liability 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.
c. 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.
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3. Professional Liability Coverage
If written on a claims -made basis, the retroactivity date shall be the effective
date of this Agreement. The policy period shall extend two years from date of
final invoice.
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 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 copies of required
insurance policies, at such time as the City seeks coverage under the policies for an
occurrence or claim against the City. 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. Consultant agrees, for the term of this Agreement and for two (2) years
following its termination to indemnify the City for any claim, cost or liability for personal injury
or property damage caused by 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
Contract 1819087
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costs associated with defending the claim, including, but not limited to, the fees of attorneys,
investigators, consultants, experts and expert witnesses, and litigation expenses.
References in this paragraph to City or Consultant, include their officers, employees, and
subcontractors.
6.3 Limitation of Liability: With the exception of claims covered by the insurance required by
Section 6.1, by third parties against the City subject to indemnification under Section 6.2 and
claims arising out of contract or project administration services provided by Consultant under
this Agreement, City agrees to limit Consultant's liability to City and to all persons having
contractual relationships with City to the greater of $350,000 or the total compensation
received by Consultant for the services provided by Contractor under this Agreement at the
time the claim is made or the liability arises, whichever is later. Notwithstanding any other
provision herein, Consultant's liability with respect to the excepted claims identified in the prior
sentence shall not exceed the applicable insurance limit required by City pursuant to Section
6.1.B.
6.4 Waiver of Consequential Damages: With the exception of claims covered by the insurance
required by Section 6.1 and by third parties against the City subject to indemnification under
Section 6.2 neither Consultant nor City nor either party's suppliers, agents, officers, and
directors shall have any liability to the other party for any indirect, incidental, special, or
consequential damages, cost or expense, including loss of revenue or profit, whether actual or
anticipated, loss of use, failure to realize anticipated savings, loss of or damage to data or
other commercial or economic loss. This waiver of consequential damages applies even if a
party has been advised in writing in advance of the loss that such damages are foreseeable
and the party receiving such notice acknowledges receipt of the notice and proceeds to
perform after receiving such notice.
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.
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.
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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,
subject to off -set for any direct damages City may incur as a result of Consultant's breach of
contract.
7.9 Execution of Agreement. This Agreement may be executed in duplicate originals, each
bearing the original signature of the parties. Alternatively, this Agreement may be executed
and delivered by facsimile or other electronic transmission, and in more than one counterpart,
each of which shall be deemed an original, and all of which together shall constitute one and
the same instrument. When executed using either alternative, the executed agreement shall
be deemed an original admissible as evidence in any administrative or judicial proceeding to
prove the terms and content of this Agreement.
8.0 Dispute Resolution. The Parties shall attempt in good faith to resolve any dispute arising out
of or relating to this Agreement promptly by negotiation. Any party may give the other party
written notice of any dispute not resolved during the normal course of business. Within thirty
(30) days after delivery of the initial notice, the executives of both parties shall meet at a
mutually acceptable time and place and use good faith efforts to resolve the dispute. In the
event that the parties are unable to settle the dispute through direct negotiations, either party
may request the other party to use a mediator under agreed upon terms to attempt to resolve
the dispute through mediation. If mediation does not commence and/or conclude within thirty
(30) of a written request to mediate from one party to the other, either party may pursue legal
action to resolve the dispute. Nothing in this Section 8.0 waives or makes inapplicable the
provisions in Title 1, Division 36, Part 3 of the California Government Code, commencing with
Section 810.
9.0 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:
CI I Y OF UKIAH
DEPT. OF ELECTRIC UTILITY
300 SEMINARY AVENUE
UKIAH, CALIFORNIA 95482-5400
Contract 1819087
YACiti 7 OF 7
POWER ENGINEERS, INCORPORATED
ATTN: JEFF MANN
PO BOX 1066
HAILEY, ID 83333
10.0 SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement the Effective Date:
POWER ENGINEERS, INCORPORATED
BY:
PRINT NAME: 3C h,
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IRS IDN Number
CITY OF UKIAH
BY:
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CITY
ATTEST
NGIACOMO
NAGER
IAA/
CITY CLERK Date
Contract 1819087
PAGE. 8 OF 7
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ATTACHMENT A — Contract #1819087 - SCOPE OF SERVICES
1. Services to be Performed by Engineer
The general engineering services required by Client shall be performed as Client may from time
to time request, and as mutually agreed between Client and POWER and incorporated into a
task order ("Task Order"), a form of which is attached hereto. At Client's request, POWER shall
prepare a description of Services ("Proposal") for each Task Order requested by Client. All Task
Orders and related Proposals shall be subject to the terms and conditions of this Agreement,
and incorporated herein by this reference. In the event of any ambiguity or inconsistency
between the terms of this Agreement and any attached Task Order and related Proposal, it is
agreed that the provisions contained in this Agreement shall control. Written approval of the
Proposal by Client shall constitute agreed upon Services.
2. POWER represents that it will perform its services in accordance with generally accepted
professional practices existing at the time of performance for the locality where the services are
performed. NO OTHER REPRESENTATION, EXPRESS OR IMPLIED, IS MADE OR
INTENDED BY THE PERFORMANCE OF THE SERVICES PROVIDED.
ATTACHMENT B — Contract 1819087
POWER ENGINEERS INC.
SCHEDULE OF CHARGES — 2018
POWER DELIVERY FOR CITY OF UKIAH
This standard Schedule of Charges is for professional services. Unless agreed otherwise, charges for work on continuing projects will be based on the then current Schedule of Charges. A
new Schedule of Charges will be issued to be effective January 1 of each new year and as necessary on an intermediate basis to accommodate new items or revised charges. Invoices will
be submitted monthly and/or upon completion of the wort end will be due and payable when issued. All accounts not paid within thirty (30) days after Owner's receipt of the invoice will boar a
SERVICE CHARGE OF 1.0% PER MONTH for each month the invoice Is unpaid.
GRADE PERSONNEL CLASSIFICATION
10 Senior Project Manager I $184.50/hr.
Senior Program Manager I
Senior Project Engineer 111
Strategic Consultant 111
9 Project Manager III $175.25/hr.
Project Lead IV
Construction Manager III
Senior Project Engineer II
Strategic Consultant II
Senior Consultant 111
8 Project Manager 11 $168.00/hr.
Project Lead III Strategic Consultant I
Senior Consultant II
Project Engineer III
Construction Manager II
Senior Project Engineer I
Engineer V
7 Project Manager 1 $149.75/hr.
Project Lead II
Construction Manager I
Environmental Specialist IV
Project Engineer II
Engineer IV
Designer V
Project Administrator 111
Senior Consultant 1
Consultant 111
6 Project Lead I $127.251hr.
Project Engineer i
Engineer III
Designer IV
Environmental Specialist 111
Procurement Specialist III
Scheduling Specialist 111
Project Administrator II
Consultant II
5 Engineer II 6110.751hr.
Designer 111
Technician IV
Environmental Specialist II
Procurement Specialist II
Scheduling Specialist II
Project Administrator 1
Consultant I
4 Engineer 1 $106.25/hr.
Designer II
Technician 111
Environmental Specialist I
Procurement Specialist I
Field Representative IV
Scheduling Specialist I
Project Managers Assistant III
3 Designer! $97.50/hr.
Drafter 111
Technician II
Administrative Assistant I
Field Representative III
Staff Assistant 11
Project Managers Assistant 11
2 Drafter II $79.50/hr.
Staff Assistant
Field Representative 11
Project Managers Assistant 1
1
Drafter 1 $60.00/hr.
General Office Assistant
Field Representative 1
Personnel with specialized experience are employed by or on retainer to POWER. Charges for these specialists are negotiated on an individual basis depending on the assignment. Professional
time for depositions and testimony is charged at 1.5 times the rate for services; full-day minimums apply.
POWER ENGINEERS INC.
SCHEDULE OF CHARGES — 2018
POWER DELIVERY FOR CITY OF UKIAH
This standard Schedule of Charges is for professional services. Unless agreed otherwise, charges for work on continuing projects will be basad on the then current Schedule of Charges. A
new Schedule of Charges wit be issued to be effective January 1 of each new year and as necessary on an intermediate basis to accommodate new items or revised charges. Invoices will
be submitted monthly and/or upon completion of the work and will be due and payable when issued. All accounts not paid within thirty (30) days after Owner's receipt of the Invoice will bear a
SERVICE CHARGE OF 1.0% PER MONTH for each month tho invoice is unpaid.
REPRODUCTION
Drawings — Black & White
Large Scale Drawings (C Size)
Large Scale Drawings (D Size)
Large Scale Drawings (E Size)
Drawings — Color
Large Scale Drawings (C Size)
Large Scale Drawings (0 Size)
Large Scale Drawings (E Size)
$1.90/ea.
$3.30/ea.
$5.50/ea.
$6.00/ea.
$10.90/ea.
$17.50/ea.
Documents — Black & White
Single -sided Copies 8 x 11 $0.11/ea. 11 x 17 $0.17/ea. Double -sided
Copies 8 x 11 $0,221ea. 11 x 17 $0.34/ea.
Documents — Color
Single -sided Copies 8 x 11 $0.50/ea. 11 x 17 $1.00/ea. Double -sided
Copies 8 x 11 $1.00/ea. Spiral Comb
$2.651ea. 3 Ring Binder Dependent on
size Special Copy Center Projects (Labor) $45.00/hr.
SURVEY EqUIPMENT
Survey Equip. to support field crew $70.00/day GPS Equipment 2 Units
$60.00/hour $350.00/day
GPS Equipment 3 Units $80.00/hour $450.00/day
Other expenses including but not limited to subcontractors, airfare, lodging, meals, postage and shipping, purchases, rentals, are
charged at cost plus a carrying and handling charge of 10%.
City of Ukiah 2018 Fees (5/9/18) gc