HomeMy WebLinkAboutDudek & Associates Inc; 2006-09-20;AGREEMENT FOR
PRE-CONSTRUCTION SERVICES FOR ALGA NORTE
COMMUNITY PARK, PROJECT NO. 38372
(DUDEK & ASSOCIATES, INC.)
THIS AGREEMENT is made and entered into as of the ryu day of
20£kp, by and between the CITY OF CARLSBAD, a municipal
orporation, ("City"), and DUDEK & ASSOCIATES, INC., a California corporation,
("Contractor").
RECITALS
A. City requires the professional services of a consultant that is experienced
in construction management and inspection.
B. Contractor has the necessary experience in providing professional
services and advice related to construction management and inspection.
C. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
D. Contractor has submitted a proposal to City and has affirmed its
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this
reference in accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two (2) years from the date
first above written. The City Manager may amend the Agreement to extend it for one (1)
additional one (1) year period. Extensions will be based upon a satisfactory review of
Contractor's performance, City needs, and appropriation of funds by the City Council.
The parties will prepare a written amendment indicating the effective date and length of
the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
City Attorney Approved Version #04.01.02
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will be a not-to-exceed fee of fifty nine thousand seven hundred and twenty dollars
($59,720) paid on a time and materials basis. No other compensation for the Services
will be allowed except for items covered by subsequent amendments to this Agreement.
The City reserves the right to withhold a ten percent (10%) retention until City has
accepted the work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers'
compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any
balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor's subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractors.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
City Attorney Approved Version #04.01.02
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the work described herein
caused in whole or in part by any willful misconduct or negligent act or omission of the
Contractor, any subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's self-
administered workers' compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key Rating
of not less than "A-:V".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1.000.000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
City Attorney Approved Version #04.01.02
10.1.3 Workers' Compensation and Employer's Liability. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 The City will be named as an additional insured on General
Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these
insurance coverages, then City will have the option to declare Contractor in breach, or
may purchase replacement insurance or pay the premiums that are due on existing
policies in order to maintain the required coverages. Contractor is responsible for any
payments made by City to obtain or maintain insurance and City may collect these
payments from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
City Attorney Approved Version #04.01.02
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor
will have the right to make one (1) copy of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For City: For Contractor:
Name William Plummer Name George Litzinger
Title Deputy City Engineer __ Title CM Division Manager
Dept Engineering
CITY OF CARLSBAD DUDEK & ASSOCIATES, INC.
Address 1635 Faraday Avenue Address 605 Third Street
Carlsbad, CA 92008 Encinitas, CA 92024
Phone No. (760) 602-2765 Phone No. (760) 942-5147
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required
of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
City Attorney Approved Version #04.01.02
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor's agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
City Attorney Approved Version #04.01.02
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et sea., the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
City Attorney Approved Version #04.01.02
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
City Attorney Approved Version #04.01.02
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
DUDEK & ASSOCIATES, a
California corporation
"By;
CITYO
corpon
ATTEST:
'LORRAINE M. W
City Clerk
(print name/title)
(e-mail address)
If required by City, proper notarial acknowledgment of execution by contractor
must be attached. If a Corporation. Agreement must be signed by one corporate
officer from each of the following two groups.
"Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By:.
Deputy City Attorney
City Attorney Approved Version #04.01.02
EXHIBIT "A"
TECHNICAL APPROACH
PHASE ONE
Task I: Pre-Construction Phase Services
Task 1.1: Constructability Review
Kick-Off Meeting
We suggest that a "pre kick-off" meeting be conducted immediately after notification of selection.
This will give us an opportunity to discuss issues and begin the process of getting up to speed on the
project. The goal of this meeting will be to start conversing with the City about the project and obtain
information so that the Team will be better prepared when we are officially given the notice to
proceed. We would like to discuss the issues identified in the proposal to determine if any of them
need to be addressed in the contract documents prior to bid. The tentative agenda for the "pre-kick
off" meeting is as follows:
1. Review City's Management Philosophy
2. Discuss City's expectations of the Dudek Team
3. Confirm project goals
4. Discuss and obtain current copies of all project documents (plans, specifications, soils
reports, permits, environmental documents, right-of-way documents, agreements with other
agencies)
5. Discuss project issues and potential solutions
6. Determine key milestone dates
7. Review lines of communication
8. Discuss preferences and format of the Construction Management Plan
9. Assign tasks and establish next step
Task 1.1: Constructability Review
Once the final set of plans and specifications are complete (100%), we will conduct a review of the
contract documents identifying Constructability issues. These have proven invaluable in uncovering
potential change orders and problem areas that would normally be found by the contractor.
Resolving these issues prior to bid normally produces lower and more competitive bids and
minimizes disputes during construction.
During review of the plans and specifications, we will use our experience and lessons learned
constructing multi-discipline projects. We have performed a limited review on the plans,
specifications and soils report for this project and have identified issues we would want to discuss
further to understand them and make sure these are not potential problems. We have also listed
issues from past projects so they are on the radar screen to discuss upon completion of our review.
15"
Based on our limited review of the project documents, we have uncovered several key issues that
should require additional review by the A/E Team. Issues to consider are:
• Utility work orders need to be complete and included in the bid set of plans with a
corresponding bid item for payment. Incorporate utility relocation plans into the bid set of
plans and verify the design engineer has incorporated actual pothole data for utilities in the
design.
• Provisions and limits for removal of undocumented/unsuitable fill on-site are needed; suggest
using a unit price bid item.
• The quality of the existing stock pile material is a concern. Boring logs show ground water
encountered at 10-feet. Consider stabilization fabric (Tensar BX1200) in order to reduce
amount of overexcavation in structural sections, pavement, and flat work areas.
• Provisions for a subdrain installation to deal with potential ground water issues are needed;
suggest using a unit price bid item.
• Provisions for implementing SWPPP materials are needed; suggest using bid item unit price
items.
• Need to include a dewatering specification, and unit price for dewatering.
• Require contract milestones for critical path submittal items, switch gear, pumps/motors,
valves, piping, water features, and all other long lead time items.
• Waterline and meter connection details need to be complete and approved by the District
and the County Health Department.
• Need Air Pollution Control District (APCD) Permit for the diesel engine generator.
• Need to include relief valves at Skate Park, and possibly the pools, to relieve hydrostatic
pressure.
Task 1.2: Prepare a Construction Management Plan
Our team will prepare a construction management plan detailing the lines of communication and a
management plan for administering the project as outlined in the Contractor Coordination section.
Task 1.3: Provide Equipment Review for Recommending Material for Early Procurement
During the review of equipment, we will use our expertise and experience to recommend materials
for early procurement in order to meet the anticipated 18-month construction schedule. Below we
have listed items to be considered for early procurement:
• Pumps/motors/filters/heater/scrubbers/controllers
• Water features/slides and play equipment
Task 1.4: Bidding Phase Services
1. Attend pre-bid conference
2. Assist in answering RFI's/Preparation of Addenda
3. Assist in evaluating the bids
Task 1.5: Pre-Construction Conference
Prior to the contractor's Notice to Proceed, the Construction Manager will meet jointly with the
Contractor, City Project Manager, and other involved entities so that the Contractor understands:
contract administration guidelines; contractual roles and relationships and reinforcement of specific
requirements for safety, security and access through different areas of the construction site.
The Construction Manager will highlight environmentally sensitive areas and outline project
concerns.
Mobilization and staging requirements will be reviewed and discussed and contract interfacing with
other contractors working on the site will be discussed for a complete understanding of the site
usage, right-of-way issues, etc. The proposed inspection staff, reporting features required by the
contractor, and contract administrative details will be addressed for complete job site familiarization.
We will prepare the agenda, conduct meeting and issue meeting minutes. The pre-construction
meeting will set the tone for the project and is crucial so that the contractor understands that we
expect him to comply with the contract documents, particularly in regards to environmental and
public relations. The goal is to ensure that the contractor understands that we are there to enforce
the specifications, and that we will do it fairly and consistently. We want to portray that our attitude is
one of mutual cooperation and respect and that we are there to help expedite the project and not to
become a hindrance.
Our theme or attitude will be one of working together to achieve a common goal. The goal in this
case is to complete the project on time and within budget with minimal impact. The parties (i.e.,
Contractor, City, Architect, and Project Construction Manager), have their own responsibilities and
goals and that must be understood by all. One of our duties is to realize these goals and to form a
team which is willing to cooperate and work together.
Task 1.6: Review Engineer's Estimate and Provide Updated Estimate
• Review Engineer's Estimate and provide updated estimate if needed.
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