HomeMy WebLinkAboutD-9. Restated Stetson Aspan Well_1UB-107
APPROVED
UTILITY BOARD
11/23/15
UB-108
CITY OF AZUSA
PROFESSIONAL SERVICES AGREEMENT
(AMENDED AND RESTATED)
1.PARTIES AND DATE.
This Amended And Restated Agreement (“Agreement”) is made and entered into this 24th
day of November, 2015 by and between the City of Azusa, a municipal corporation organized under
the laws of the State of California with its principal place of business at 213 East Foothill Boulevard,
Azusa, California 91702 (“City”) and Stetson Engineers Inc., a corporation with its principal place of
business at 861Village Oaks Drive, Suite 100, Covina, California 91724 (“Consultant”). City and
Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”
2.RECITALS.
2.1 January 2015 Agreement For Consulting Engineering Services For Aspan Well
Test Pumping Project (“Project”)
On or about January 26, 2015, the Parties entered into that certain Professional Services
Agreement for consulting engineering services (“Services”) for the Aspan Well Test Pumping
Project (W-288) (“ Original Agreement”). The purpose of the Project is to assist City with the
preparation and submittal of discharge permit documents that are necessary to allow City to test
pump the Aspan Well in order to determine if contamination still exists in the well area. With that
information, City will be able to determine if the well can be directly put back online and if not, what
type of treatment process may be necessary to do so. The Services include, but are not limited to,
Task 1 which provides for the preparation of draft and final applications, submission of applications
and obtaining permits from the Regional Water Quality Control Board (“RWQCB”) and from the
Los Angeles County Flood Control District (“Flood Control”). The term of the Original Agreement
was in effect from March 30, 2015 to November 13, 2015.
2.2 Need For Amended And Restated Agreement
Due to additional coordination which is required with the RWQCB and Flood Control,
neither Task 1, nor subsequent Tasks, were completed within the term of the Original Agreement.
There is also a need to build into the term for performance of the Services some additional time in
anticipation of delays in the issuance of a permit from Flood Control during the anticipated El Nino
rainy season. The Parties desire to enter into this Agreement in order to amend and restate the
Original Agreement in order to commence a new term for performance of the Services with a new
date for completion of the Services on or before December 31, 2016. The completion date needs to
be extended in order to provide additional time for work in connection with Flood Control and the
RWQCB to obtain permits for testing the well, coordination with discharges, preparing a sampling
plan once obtaining the permits, collecting water quality samples and submitting the required
discharge reports. The term length is also extended to account for if El Nino occurs during the rainy
season which may delay Flood Control issuing the permits.
2.3 Consultant.
Consultant desires to perform and assume responsibility for the provision of the Services
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required by the City on the terms and conditions set forth in this Agreement. Consultant represents
that it is experienced in providing Professional Consulting Engineering services to public clients, is
licensed in the State of California, and is familiar with the plans of City.
2.4 Project.
City desires to engage Consultant to render such services for the Aspan Well Test Pumping
project (W-288) (“Project”) as set forth in this Agreement.
3.TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the
City all labor, materials, tools, equipment, services, and incidental and customary work necessary to
fully and adequately supply the Services necessary for the Project. The Services are more
particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All
Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached
hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and
regulations.
3.1.2 Term. The term of this Agreement shall be from November 24, 2015 to
December 31, 2016, unless earlier terminated as provided herein. Consultant shall complete the
Services within the term of this Agreement, and shall meet any other established schedules and
deadlines. This Agreement may be administratively extended by written agreement of the Azusa
Director of Utilities and an authorized representative of Stetson Engineers and documented by way
of a revision to the schedules and deadlines set forth in Exhibit “A” or Exhibit “B” attached hereto
and incorporated herein by reference.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services
shall be performed by Consultant or under its supervision. Consultant will determine the means,
methods and details of performing the Services subject to the requirements of this Agreement. City
retains Consultant on an independent contractor basis and not as an employee. Consultant retains the
right to perform similar or different services for others during the term of this Agreement. Any
additional personnel performing the Services under this Agreement on behalf of Consultant shall also
not be employees of City and shall at all times be under Consultant’s exclusive direction and control.
Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with
their performance of Services under this Agreement and as required by law. Consultant shall be
responsible for all reports and obligations respecting such additional personnel, including, but not
limited to: social security taxes, income tax withholding, unemployment insurance, disability
insurance, and workers’ compensation insurance.
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3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with the Schedule of Services set forth in
Exhibit “B.” Consultant represents that it has the professional and technical personnel required to
perform the Services in conformance with such conditions. In order to facilitate Consultant’s
conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner.
Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance
to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant
shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain
key personnel will perform and coordinate the Services under this Agreement. Should one or more
of such personnel become unavailable, Consultant may substitute other personnel of at least equal
competence upon written approval of City. In the event that City and Consultant cannot agree as to
the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As
discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to
the City, or who are determined by the City to be uncooperative, incompetent, a threat to the
adequate or timely completion of the Project or a threat to the safety of persons or property, shall be
promptly removed from the Project by the Consultant at the request of the City. The key personnel
for performance of this Agreement are as follows: Kevin Smead, P.E.
3.2.5 City’s Representative. The City hereby designates Melissa Barbosa, P.E., or
his or her designee, to act as its representative for the performance of this Agreement (“City’s
Representative”). City’s Representative shall have the power to act on behalf of the City for all
purposes under this Contract. Consultant shall not accept direction or orders from any person other
than the City’s Representative or his or her designee.
3.2.6 Consultant’s Representative. Consultant hereby designates Stephen B.
Johnson, P.E., Vice President or his/her designee, to act as its representative for the performance of
this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full
authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The
Consultant’s Representative shall supervise and direct the Services, using his/her best skill and
attention, and shall be responsible for all means, methods, techniques, sequences and procedures and
for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in
the performance of Services and shall be available to City’s staff, consultants and other staff at all
reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all
Services under this Agreement in a skillful and competent manner, consistent with the standards
generally recognized as being employed by professionals in the same discipline in the State of
California. Consultant represents and maintains that it is skilled in the professional calling necessary
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to perform the Services. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Finally, Consultant
represents that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services, including a City
Business License, and that such licenses and approvals shall be maintained throughout the term of
this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant
shall perform, at its own cost and expense and without reimbursement from the City, any services
necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with
the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who
is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely
completion of the Project, a threat to the safety of persons or property, or any employee who fails or
refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from
the Project by the Consultant and shall not be re-employed to perform any of the Services or to work
on the Project.
3.2.9 Period of Performance and Liquidated Damages. Consultant shall perform and
complete all Services under this Agreement within the term set forth in Section 3.1.2 above
(“Performance Time”). Consultant shall also perform the Services in strict accordance with any
completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or
which may be separately agreed upon in writing by the City and Consultant (“Performance
Milestones”). Consultant agrees that if the Services are not completed within the aforementioned
Performance Time and/or pursuant to any such Project Milestones developed pursuant to provisions
of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Consultant shall keep
itself fully informed of and in compliance with all local, state and federal laws, rules and regulations
in any manner affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. Consultant shall be liable for all violations
of such laws and regulations in connection with Services. If the Consultant performs any work
knowing it to be contrary to such laws, rules and regulations and without giving written notice to the
City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend,
indemnify and hold City, its officials, directors, officers, employees and agents free and harmless,
pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out
of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Consultant. By executing this
Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state
and federal law respecting the employment of undocumented aliens, including, but not limited to, the
Immigration Reform and Control Act of 1986, as may be amended from time to time. Such
requirements and restrictions include, but are not limited to, examination and retention of
documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed a violation of any such law within the five (5) years
immediately preceding the date of execution of this Agreement, and shall not violate any such law at
any time during the term of the Agreement. Consultant shall avoid any violation of any such law
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during the term of this Agreement by participating in an electronic verification of work authorization
program operated by the United States Department of Homeland Security, by participating in an
equivalent federal work authorization program operated by the United States Department of
Homeland Security to verify information of newly hired employees, or by some other legally
acceptable method. Consultant shall maintain records of each such verification, and shall make them
available to the City or its representatives for inspection and copy at any time during normal business
hours. The City shall not be responsible for any costs or expenses related to Consultant’s
compliance with the requirements provided for in Section 3.2.10 or any of its sub-sections.
3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Sub-
subcontractors and Subconsultants. To the same extent and under the same conditions as Consultant,
Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants
performing any work relating to the Project or this Agreement to make the same verifications and
comply with all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply. Each person
executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of
Consultant, and understands that any of the following shall be grounds for the City to terminate the
Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-subcontractors
or subconsultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2)
any misrepresentation or material omission concerning compliance with such requirements
(including in those verifications provided to the Consultant under Section 3.2.10.2); or (3) failure to
immediately remove from the Project any person found not to be in compliance with such
requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Consultant
certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for Workers’ Compensation or to undertake self-
insurance in accordance with the provisions of that Code, and agrees to comply with such provisions
before commencing the performance of the Services.
3.2.10.5 Equal Opportunity Employment. Consultant represents that it
is an equal opportunity employer and it shall not discriminate against any subconsultant, 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.
3.2.10.6 Air Quality. To the extent applicable, Consultant must fully
comply with all applicable laws, rules and regulations in furnishing or using equipment and/or
providing services, including, but not limited to, emissions limits and permitting requirements
imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air
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Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more
broad, Consultant shall specifically be aware of their application to "portable equipment", which
definition is considered by SCAQMD and CARB to include any item of equipment with a fuel-
powered engine. Consultant shall indemnify City against any fines or penalties imposed by
SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws,
rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is
responsible under its indemnity obligations provided for in this Agreement.
3.2.10.7 Water Quality.
(A) Management and Compliance. To the extent applicable,
Consultant’s Services must account for, and fully comply with, all local, state and federal laws, rules
and regulations that may impact water quality compliance, including, without limitation, all
applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California
Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and
regulations of the Environmental Protection Agency, the State Water Resources Control Board and
the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of
storm water; and any and all regulations, policies, or permits issued pursuant to any such authority
regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality
Control Act, to any ground or surface water in the State.
(B) Liability for Non-compliance. Failure to comply with the laws,
regulations and policies described in this Section is a violation of law that may subject Consultant or
City to penalties, fines, or additional regulatory requirements. Consultant shall defend, indemnify
and hold the City, its directors, officials, officers, employees, volunteers and agents free and
harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all
fines, penalties, claims or other regulatory requirements imposed as a result of Consultant’s non-
compliance with the laws, regulations and policies described in this Section, unless such non-
compliance is the result of the sole established negligence, willful misconduct or active negligence of
the City, its officials, officers, agents, employees or authorized volunteers.
(C) Training. In addition to any other standard of care
requirements set forth in this Agreement, Consultant warrants that all employees and subcontractors
shall have sufficient skill and experience to perform the Services assigned to them without impacting
water quality in violation of the laws, regulations and policies described in this Section. Consultant
further warrants that it, its employees and subcontractors will receive adequate training, as
determined by City, regarding the requirements of the laws, regulations and policies described in this
Section as they may relate to the Services provided under this Agreement. Upon request, City will
provide Consultant with a list of training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Consultant shall not commence
Services under this Agreement until it has provided evidence satisfactory to the City that it has
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secured all insurance required under this section. In addition, Consultant shall not allow any
subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the
City that the subcontractor has secured all insurance required under this section.
3.2.11.2 Minimum Requirements. Consultant shall, at its expense,
procure and maintain for the duration of the Agreement insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the performance of the
Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant
shall also require all of its subcontractors to procure and maintain the same insurance for the duration
of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and
(3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required
by the State of California and Employer’s Liability Insurance. The policy shall not contain any
exclusion contrary to the Agreement, including but not limited to endorsements or provisions
limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29);
or (2) cross liability for claims or suits by one insured against another.
(B) Minimum Limits of Insurance. Consultant shall maintain
limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury
and property damage. If Commercial General Liability Insurance or other form with general
aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit
shall apply separately to this Agreement/location or the general aggregate limit shall be twice the
required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and
property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’
Compensation limits as required by the Labor Code of the State of California. Employer’s Liability
limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition
to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least
fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance
coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or
materially reduced, Consultant shall, within ten (10) days after receipt of written notice of such
cancellation or reduction of coverage, file with the City evidence of insurance showing that the
required insurance has been reinstated or has been provided through another insurance company or
companies. In the event any policy of insurance required under this Agreement does not comply
with these specifications or is canceled and not replaced, the City has the right but not the duty to
obtain the insurance it deems necessary and any premium paid by the City will be promptly
reimbursed by Consultant or the City may withhold amounts sufficient to pay premium from
Consultant payments. In the alternative, the City may suspend or terminate this Agreement.
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3.2.11.3 Professional Liability. Consultant shall procure and maintain,
and require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their profession.
Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to
include contractual liability. Defense costs shall be paid in addition to limits.
3.2.11.4 Insurance Endorsements. The insurance policies shall contain
the following provisions, or Consultant shall provide endorsements on forms supplied or approved
by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or
be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements
providing the exact same coverage, the City of Azusa, its directors, officials, officers, employees,
agents and volunteers shall be covered as additional insured with respect to the Services or ongoing
and complete operations performed by or on behalf of the Consultant, including materials, parts or
equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements
providing the exact same coverage, the insurance coverage shall be primary insurance as respects the
City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any excess
insurance shall contain a provision that such coverage shall also apply on a primary and
noncontributory basis for the benefit of the City, before the City’s own primary insurance or self-
insurance shall be called upon to protect it as a named insured. Any insurance or self-insurance
maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be
excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way.
Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance
proceeds in excess of the specified minimum limits of coverage shall be available to the parties
required to be named as additional insureds pursuant to this Section 3.2.11.4(A).
(B) Automobile Liability. The automobile liability policy shall
include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance
coverage shall be primary insurance as respects the City, its directors, officials, officers, employees,
agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the
Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the
City, its directors, officials, officers, employees, agents and volunteers shall be excess of the
Consultant’s insurance and shall not be called upon to contribute with it in any way.
Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance
proceeds in excess of the specified minimum limits of coverage shall be available to the parties
required to be named as additional insureds pursuant to this Section 3.2.11.4(B).
(C) Workers’ Compensation and Employers’ Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials,
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officers, employees, agents and volunteers for losses paid under the terms of the insurance policy
which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or
canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by
certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with
reporting or other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, employees, agents and volunteers.
Any failure to comply with reporting or other provisions of the policies including breaches of
warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and
volunteers, or any other additional insureds.
3.2.11.5 Separation of Insureds; No Special Limitations; Waiver of
Subrogation. All insurance required by this Section shall contain standard separation of insureds
provisions. In addition, such insurance shall not contain any special limitations on the scope of
protection afforded to the City, its directors, officials, officers, employees, agents and volunteers.
All policies shall waive any right of subrogation of the insurer against the City, its officials, officers,
employees, agents, and volunteers, or any other additional insureds, or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to waive
their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against
City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and
shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.2.11.6 Deductibles and Self-Insurance Retentions. Any deductibles or
self-insured retentions must be declared to and approved by the City. Consultant shall guarantee
that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or
self-insured retentions as respects the City, its directors, officials, officers, employees, agents and
volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related
investigation costs, claims and administrative and defense expenses.
3.2.11.7 Subconsultant Insurance Requirements. Consultant shall not
allow any subconsultants to commence work on any subcontract relating to the work under the
Agreement until they have provided evidence satisfactory to the City that they have secured all
insurance required under this Section. If requested by Consultant, the City may approve different
scopes or minimum limits of insurance for particular subconsultants. The Consultant and the City
shall be named as additional insureds on all subconsultants’ policies of Commercial General
Liability using ISO form 20 38, or coverage at least as broad.
3.2.11.8 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California,
and satisfactory to the City.
3.2.11.9 Verification of Coverage. Consultant shall furnish City with
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original certificates of insurance and endorsements effecting coverage required by this Agreement on
forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be
signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms
provided by the City if requested. All certificates and endorsements must be received and approved
by the City before work commences. The City reserves the right to require complete, certified copies
of all required insurance policies, at any time.
3.2.11.9 Reporting of Claims. Consultant shall report to the City, in
addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection
with the Services under this Agreement.
3.2.12 Safety. Consultant shall execute and maintain its work so as to avoid injury or
damage to any person or property. In carrying out its Services, the Consultant shall at all times be in
compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise
all necessary precautions for the safety of employees appropriate to the nature of the work and the
conditions under which the work is to be performed. Safety precautions as applicable shall include,
but shall not be limited to: (A) adequate life protection and life saving equipment and procedures;
(B) instructions in accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and
shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or
lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper
inspection and maintenance of all safety measures.
3.2.13 Accounting Records. Consultant shall maintain complete and accurate records
with respect to all costs and expenses incurred under this Agreement. All such records shall be
clearly identifiable. Consultant shall allow a representative of City during normal business hours to
examine, audit, and make transcripts or copies of such records and any other documents created
pursuant to this Agreement. Consultant shall 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.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including authorized
reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C”
attached hereto and incorporated herein by reference. The total compensation shall not exceed
Thirty three thousand, six hundred eighty-nine dollars and thirty six cents dollars ($33,689.36)
without written approval of the City’s Utility Board. Extra Work may be authorized, as described
below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a monthly
itemized statement which indicates work completed and hours of Services rendered by Consultant.
The statement shall describe the amount of Services and supplies provided since the initial
commencement date, or since the start of the subsequent billing periods, as appropriate, through the
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date of the statement. City shall, within 45 days of receiving such statement, review the statement
and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request
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’s
Representative.
3.3.5 Prevailing Wages. Consultant is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title
8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage
rates and the performance of other requirements on “public works” and “maintenance” projects. If
the Services are being performed as part of an applicable “public works” or “maintenance” project,
as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant
agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy
of the prevailing rates of per diem wages in effect at the commencement of this Agreement.
Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification
or type of worker needed to execute the Services available to interested parties upon request, and
shall post copies at the Consultant’s principal place of business and at the project site. Consultant
shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free
and harmless from any claim or liability arising out of any failure or alleged failure to comply with
the Prevailing Wage Laws.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. City may, by written notice to Consultant,
terminate the whole or any part of this Agreement at any time and without cause by giving written
notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7)
days before the effective date of such termination. Upon termination, Consultant shall be
compensated only for those services which have been adequately rendered to City, and Consultant
shall be entitled to no further compensation. Consultant may not terminate this Agreement except
for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein,
City may require Consultant to provide all finished or unfinished Documents and Data and other
information of any kind prepared by Consultant in connection with the performance of Services
under this Agreement. Consultant shall be required to provide such document and other information
within fifteen (15) days of the request.
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3.4.3 Additional Services. In the event this Agreement is terminated in whole or in
part as provided herein, City may procure, upon such terms and in such manner as it may determine
appropriate, services similar to those terminated.
3.5 Ownership of Materials and Confidentiality.
3.5.1 Documents & Data; Licensing of Intellectual Property. This Agreement
creates a non-exclusive 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”). All Documents & Data shall be and remain the property of
City, and shall not be used in whole or in substantial part by Consultant on other projects without the
City's express written permission. Within thirty (30) days following the completion, suspension,
abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies
of all Documents & Data, in a form and amount required by City. City reserves the right to select the
method of document reproduction and to establish where the reproduction will be accomplished.
The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a
dispute regarding the amount of compensation to which the Consultant is entitled under the
termination provisions of this Agreement, Consultant shall provide all Documents & Data to City
upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to
City any such documents pending resolution of the dispute. In addition, Consultant shall retain
copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of
the Project, and shall make copies available to City upon the payment of actual reasonable
duplication costs. Before destroying the Documents & Data following this retention period,
Consultant shall make a reasonable effort to notify City and provide City with the opportunity to
obtain the documents.
3.5.2 Subcontractors. Consultant shall require all subcontractors to agree in writing
that City is granted a non-exclusive 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 its subcontractors, or those provided to Consultant by the City.
3.5.3 Right to Use. City shall not be limited in any way in its use or reuse of the
Documents and Data or any part of them at any time for purposes of this Project or another project,
provided that any such use not within the purposes intended by this Agreement or on a project other
than this Project without employing the services of Consultant shall be at City’s sole risk. If City
uses or reuses the Documents & Data on any project other than this Project, it shall remove the
Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its
officers, directors, agents and employees from claims arising out of the negligent use or re-use of the
Documents & Data on such other project. Consultant shall be responsible and liable for its
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Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the
Documents & Data at the time they are provided to the City upon completion, suspension,
abandonment or termination. Consultant shall not be responsible or liable for any revisions to the
Documents & Data made by any party other than Consultant, a party for whom the Consultant is
legally responsible or liable, or anyone approved by the Consultant.
3.5.4 Indemnification. Consultant shall defend, indemnify and hold the City, its
directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright,
trade secret, trade name, trademark, or any other proprietary right of any person or entity in
consequence of the use on the Project by City of the Documents & Data, including any method,
process, product, or concept specified or depicted.
3.5.5 Confidentiality. All Documents & Data either created by or provided to
Consultant in connection with the performance of this Agreement shall be held confidential by
Consultant. All Documents & Data shall not, without the prior written consent of City, be used or
reproduced by Consultant for any purposes other than the performance of the Services. Consultant
shall not disclose, cause or facilitate the disclosure of the Documents & Data to any person or entity
not connected with the performance of the Services or the Project. 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
of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper,
newspaper, television or radio production or other similar medium without the prior written consent
of City.
3.6 General Provisions.
3.6.1 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
Consultant:
Stetson Engineers, Inc.
861 Village Oaks Drive, Suite 100
Covina, CA 91724
Attn: Stephen B. Johnson, P.E.
City:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Jeffrey Lawrence Cornejo Jr., City Clerk
Such notice shall be deemed made when personally delivered or when mailed, forty-
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eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party
at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
3.6.2 Indemnification.
3.6.2.1 Scope of Indemnity. To the fullest extent permitted by law, Consultant
shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and
agents free and harmless from any and all claims, demands, causes of action, costs, expenses,
liability, loss, damage or injury of any kind, in law or equity, to property or persons, including
wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or
omissions of Consultant, its officials, officers, employees, subcontractors, consultants or agents in
connection with the performance of the Consultant’s Services, the Project or this Agreement,
including without limitation the payment of all consequential damages, expert witness fees and
attorneys fees and other related costs and expenses. Notwithstanding the foregoing, to the extent
Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited,
to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Consultant.
3.6.2.2 Additional Indemnity Obligations. Consultant shall defend, with legal
counsel chosen by City, at Consultant’s own cost, expense and risk, any and all claims, actions or
other proceedings of every kind covered by Section 3.6.2.1 that may be brought or instituted against
City or its directors, officials, officers, employees, volunteers and agents. Consultant shall pay and
satisfy any judgment, award or decree that may be rendered against City or its directors, officials,
officers, employees, volunteers and agents as party of any such claim, suit, action or other
proceeding. Consultant shall also reimburse City for the cost of any settlement paid by City or its
directors, officials, officers, employees, agents, or volunteers as part of any such claim, suit, action or
other proceeding. Such reimbursement shall include payment for City’s attorneys’ fees and costs,
including expert witness fees. Consultant shall reimburse City and its directors, officials, officers,
employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of
them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation
to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials officers, employees, agents, or
volunteers.
3.6.3 Governing Law; Government Code Claim Compliance. This Agreement shall
be governed by the laws of the State of California. Venue shall be in Los Angeles County. In
addition to any and all contract requirements pertaining to notices of and requests for compensation
or payment for extra work, disputed work, claims and/or changed conditions, Consultant must
comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing
any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon
the Government Code claims shall be limited to those matters that remain unresolved after all
procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been
followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite
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contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred
from bringing and maintaining a valid lawsuit against the City.
3.6.4 Time of Essence. Time is of the essence for each and every provision of this
Agreement.
3.6.5 City’s Right to Employ Other Consultants. City reserves right to employ other
consultants in connection with this Project.
3.6.6 Successors and Assigns. This Agreement shall be binding on the successors
and assigns of the parties.
3.6.7 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer,
either directly or by operation of law, this Agreement or any interest herein without the prior written
consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or
transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation
or transfer.
3.6.8 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any term
referencing time, days or period for performance shall be deemed calendar days and not work days.
All references to Consultant include all personnel, employees, agents, and subcontractors of
Consultant, except as otherwise specified in this Agreement. All references to City include its
elected officials, officers, employees, agents, and volunteers except as otherwise specified in this
Agreement. The captions of the various articles and paragraphs are for convenience and ease of
reference only, and do not define, limit, augment, or describe the scope, content, or intent of this
Agreement.
3.6.9 Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.10 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege,
or service voluntarily given or performed by a Party shall give the other Party any contractual rights
by custom, estoppel, or otherwise.
3.6.11 No Third Party Beneficiaries. Except to the extent expressly provided for in
Section 3.6.7, there are no intended third party beneficiaries of any right or obligation assumed by the
Parties.
3.6.12 Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
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3.6.13 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. Consultant further agrees to file, or
shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s
Filing Officer as required under state law in the performance of the Services. 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.
3.6.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary, appropriate
or convenient to attain the purposes of this Agreement.
3.6.15 Attorney’s Fees. If either party commences an action against the other party,
either legal, administrative or otherwise, arising out of or in connection with this Agreement, the
prevailing party in such litigation shall be entitled to have and recover from the losing party
reasonable attorney’s fees and all other costs of such action.
3.6.16 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 bind each respective Party.
3.6.17 Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
3.6.18 Entire Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by both
parties.
[SIGNATURES ON NEXT PAGE]
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CITY OF AZUSA STETSON ENGINEERS, INC.
By: By:
Joseph Romero Rocha
Mayor
Name:
Attest:
Title:
Jeffrey Lawrence Cornejo Jr.
City Clerk corporate seal
Approved as to Form:
Best Best & Krieger LLP By:
Name:
Jeffry F. Ferre
City Attorney
Title: _________________________
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EXHIBIT “A”
SCOPE OF SERVICES
Project W-288
ATTACHED FOLLOWING THIS PAGE
A-1
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EXHIBIT “B”
SCHEDULE OF SERVICES
B-1
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EXHIBIT “C”
COMPENSATION
C-1
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