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AGREEMENT FOR ENGINEERING SERVICES
SAN FERNANDO BIKEWAY AND METRO RAILROAD LANDSCAPING PROJECT PS&E
DATE: December 5, 2023
PARTIES: “OWNER”
THE CITY OF BURBANK, a municipal corporation
Designated Official: Name: Patrick Prescott
Title: Community Development Director
Telephone: (818) 238-5176
Mailing Address: 150 N. Third Street
Burbank, CA 91502
THE “ENGINEER”
Kimley-Horn and Associates, Inc.
Representative: Jean Fares, PE
Senior Vice President
21820 Burbank Boulevard, Suite 230
Woodland Hills, CA 91367
747-900-8400
[email protected]
TERM: Commencement Date: December 5, 2023
Completion Date: December 5, 2026
COST OF SERVICES: $168,820
THIS AGREEMENT MUST BE FIRST EXECUTED BY THE ENGINEER OR ITS
REPRESENTATIVE AND APPROVED AS TO FORM BY THE CITY ATTORNEY
BEFORE THE AGREEMENT MAY BE EXECUTED ON BEHALF OF THE CITY OF BURBANK.
AGREEMENT FOR ENGINEERING SERVICES
ATTACHMENT 5-1
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\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 2 THIS AGREEMENT FOR ENGINEERING SERVICES (“Agreement”) is made and effective this 5th day of December, 2023, by and between the CITY OF BURBANK, a municipal corporation ("City” or “Owner”"), and Kimley-Horn and Associates, Inc., a Stock Corporation ("Engineer"). Hereinafter, the Owner and the Engineer may be referred to collectively as “Parties.” This Agreement is entered into with respect to the following facts:
A. Owner requires design and engineer services for the Project known as the San Fernando Bikeway and Metro Railroad Landscaping Project (the “Project”) to be located within the Metro railroad right of way between Hollywood Way and the Burbank Animal Shelter in the City of Burbank.
B. Owner met and discussed all Project requirements with the Engineer to identify goals, objectives, standards, and tasks necessary to complete final plans, specifications, and estimates for the Project, including a landscape maintenance manual and engineering support during construction..
The new Project is currently and generally comprised of: the construction of landscaping and a landscaping irrigation system in the Metro railroad right of way adjacent to San Fernando Boulevard and Victory Place between Hollywood Way and just north of the Burbank Animal Shelter.
NOW, THEREFORE, in consideration of the covenants hereinafter set forth, Owner and Engineer mutually agree as follows:
ARTICLE 1 ENGINEER'S GENERAL RESPONSIBILITIES
1.1 Services and Phased Authorizations.
Engineer agrees to perform during the term of this Agreement, each and every service enumerated herein and in the “Scope of Services” document attached to this Agreement as Exhibit A (“Services”). The initiation of each phase of Services by the Engineer will commence upon receipt of a written Notice to Proceed from the Owner’s Representative designated in Exhibit B, authorizing Engineer to proceed to the extent of such written authorization.
1.2 Owner’s Separate Consultants.
Owner, at its sole option, may retain other consultants in connection with various phases of design and construction for this Project (“Owner’s Separate Consultants”).
Owner’s Separate Consultants may be designated in Exhibit B or, in writing, after execution of this Agreement. Engineer acknowledges and agrees that it will coordinate its Services with Owner’s Separate Consultants upon written notice by Owner to Engineer of their designation including, but not limited to, participating in meetings with the Owner’s Separate Consultants without additional charge to Owner. Owner’s retention and use of Separate Consultants shall not in any way diminish or supersede Engineer’s responsibilities under this Agreement. The Engineer, however, will not be responsible for any errors and omissions contained in the Owner’s separate Consultants instruments of service.
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1.3 Engineer’s Personnel.
1.3.1 Engineer’s Designated Project Representative. The Engineer’s Designated Project Representative, as approved by Owner, is designated in Exhibit B.
Engineer’s Representative shall: (1) be actively involved throughout all phases of preliminary investigation, engineering and design, and construction of the Project; (2) maintain design oversight of the Project at all times; (3) have full authority to represent and act on behalf of the Engineer for all purposes under this Agreement; (4) supervise and direct the Services using their professional skill and attention; (5) be responsible for the means, methods, techniques, sequences, and procedures used for the Services of the Engineer and its Consultants; (6) coordinate all portions of the Services; and (7) act as the principal contact with the Owner and all contractors, consultants, engineers, and inspectors on the Project. Notwithstanding the foregoing, Engineer’s Designated Project Representative shall not be personally liable for, nor be a guarantor of, the performance of Engineer’s obligations hereunder.
1.3.2 Engineer’s Key Personnel. In addition to its designated Representative, Engineer represents to Owner that certain additional Key Personnel, approved by Owner and designated in Exhibit B will perform Services required by this Agreement. Owner may at any time elect to add job categories to the Engineer’s Key Personnel list.
1.3.3 Engineer’s Consultants. Engineer has the option, unless Owner reasonably objects in writing, to employ, at its expense, consultants qualified and licensed to render Services in connection with the Project and to delegate duties to them without relieving Engineer from responsibility under this Agreement. Engineer shall utilize the consultants accepted by Owner and designated in Exhibit B (“Consultants”) to perform Services. Whenever it is necessary for the Engineer to employ additional Consultants or substitute designated Consultants, that action shall require the prior written acceptance of Owner. Owner will not unreasonably withhold acceptance. The Engineer shall enter into written agreements with the Consultants that require each Consultant to acknowledge and agree that all Services must be performed in accordance with Engineer’s obligations under this Agreement and to provide a breakdown and back-up for all Services and costs.
Owner shall have the right, but not the obligation, to review and accept the form and substance of Engineer’s contracts with Consultants. All Consultants (Mechanical, Electrical, Plumbing, Structural, Civil, and others) hired by Engineer shall meet all of the insurance requirements set forth in this Agreement and their contracts shall not contain any waiver or limitation of liability unless approved by Owner in writing. Each Consultant contract will be assigned if necessary by the Engineer to Owner, provided that the assignment is effective only after termination of this Agreement by the Owner and only for those Consultant contracts that the Owner accepts by notifying the Consultant in writing. A copy of each written contract between the Engineer and its Consultants shall be provided to the City prior to the commencement of Consultants services to be provided to the Engineer.
Nothing contained in this Agreement, or otherwise, shall create any contractual relation between Owner and any Engineer’s Consultant(s), and no subcontract shall relieve Engineer of its responsibilities and obligations hereunder. Engineer agrees to be as fully responsible to Owner for the acts and omissions of its Consultant(s) and of ATTACHMENT 5-3
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 4 persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Engineer. Engineer’s obligation to pay its Consultant(s) is an independent obligation from Owner’s obligation to make payments to the Engineer.
Engineer shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by Owner’s Project Manager, except that, which is expressly identified and approved in Exhibit B.
Engineer shall pay its Consultants within ten (10) calendar days from receipt of each payment made to Engineer by Owner.
All subcontracts entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to Engineer’s Consultants.
Any substitution of Engineer’s Consultant(s) must be approved in writing by Owner’s Project Manager prior to the start of work by the Engineer’s Consultant(s).
1.3.4 Changes in Engineer’s Designated Representative, Key Personnel and Consultants. The Services provided by the Engineer are deemed to be personal services. Engineer understands and acknowledges that its selection by Owner was, in part, based on the Engineer’s Representative, Key Personnel, and Consultants identified in Exhibit B. The Engineer shall not make changes to its Representative, Key Personnel or Consultants or reduce their responsibilities for this Project without the prior written approval of the Owner. Should circumstances beyond the control of the Engineer result in changes to any person or entity on this team, the Engineer shall submit the credentials of the Engineer’s proposed replacement for the Owner’s approval, which approval shall not be unreasonably withheld. If Owner determines, in its sole but reasonable discretion, that the performance of any person or entity employed by Engineer is unsatisfactory, then at the written request of Owner, Engineer shall remove, reassign or replace such individual or entity and such individual or entity shall not be reemployed on the Project without the prior written approval of Owner. The Owner shall make reasonable compensation to the Engineer for any adjustments in fee necessary to replace outside consultants identified in Exhibit B.
1.3.5 Qualifications and Licenses. All design, professional, and engineering Services furnished by or on behalf of the Engineer shall be performed by persons qualified to perform the Services assigned to them and shall be under the responsible charge of the Engineer licensed to practice their respective trades or professions, where required by law, and who shall assume professional responsibility for all programming, design, calculations, and related construction documents, hereinafter defined, prepared or furnished by them. Engineer’s Representative, Key Personnel, and Consultants shall be experienced in projects of similar nature and complexity to the subject Project and shall be approved by Owner prior to their assignment to the Project. Engineer, as well as its Consultants and any subcontractors, shall comply with any applicable requirements of the California Contractors State License Board. Engineer shall provide current information on the professional background, contractor licensing and any other ATTACHMENT 5-4
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 5 registrations of its Representative, Key Personnel, Consultants and subcontractors upon request by Owner.
1.3.6 Suitability of Work and Cooperation.
1.3.6.1 Engineer shall furnish Services in accordance with the agreed upon Schedule, hereinafter defined, and ensure all Services are completed in accordance with sound professional principles by licensed professionals where applicable. Engineer shall, upon request of Owner, provide all calculations, data, charts, and other information of any type whatsoever which support the Services performed pursuant to this Agreement.
Engineer may not assert as a basis for refusing to provide such information that it is proprietary.
1.3.6.2 Engineer is aware and agrees that Owner has the right to submit the Project Documents, hereinafter defined, of Engineer and its Consultants to independent reviewers. Engineer agrees to fully cooperate with such reviewers if Owner determines that such peer reviews are appropriate. Engineer’s obligation to cooperate shall include the obligation to respond in an objective professional manner to requests for information, and if expressly requested by the Owner to enter into a dialogue with the reviewer regarding the reviewer’s comments.
1.3.6.3 Engineer realizes that Owner shall have ultimate control over decisions on matters relating to aesthetic effect and any other matters affecting the cost and timing of the Project, as well as matters related to planning for end users of the completed Project. Engineer agrees to work with Owner to implement all of Owner’s decisions on these matters. The Engineer will coordinate its work and be responsive to Owner’s decisions on matters relating to aesthetic effect, cost, and timing of the Project.
In the event agreement cannot be reached between Owner and Engineer, Owner and Engineer agree to immediately proceed to resolve any disagreement pursuant to Article13.
1.4 Conflict of Interest
1.4.1 Engineer shall disclose any financial, business, or other relationship with Owner that may have an impact upon the outcome of this Agreement, or any ensuing Owner construction project. Engineer shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Owner construction project, which will follow.
1.4.2 Engineer hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
1.4.3 Engineer hereby certifies that neither Engineer, nor any firm affiliated with Engineer will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this Agreement. An ATTACHMENT 5-5
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 6 affiliated firm is one, which is subject to the control of the same persons through joint- ownership, or otherwise.
1.4.4 Except for Engineer’s Consultants whose services are limited to providing surveying or materials testing information, no Engineer’s Consultant who has provided design services in connection with this Agreement shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this Agreement.
1.4.5 Engineer hereby represents, warrants, and certifies that no member, officer or employee of the Engineer is a director, officer or employee of Owner, or a member of any of its boards, commissions or committees except to the extent permitted by law.
1.5 Statement of Compliance
1.5.1 Engineer’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Engineer has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Code of Regulations, Section 11102.
During the performance of this Agreement, Engineer and Engineer’s Consultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40 ), marital status, and denial of family care leave. Engineer and Engineer’s Consultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Engineer and Engineer’s Consultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12900 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 11000 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4.1 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Engineer and Engineer’s Consultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
ARTICLE 2 TIME FOR PERFORMANCE
2.1 Commencement Date and Completion Date.
Time is of the essence for performance of the Services required by this Agreement.
Engineer’s Basic Services will commence upon Owner’s issuance of an initial Notice to Proceed (“Commencement Date”). Completion of the Construction Documents Phase, Construction Commencement and Completion, and Occupancy are cited in Exhibit A.
The Completion Date for the Construction Documents Phase shall not be exceeded without the prior written approval of Owner. The Owner will agree to review all submissions in a timely fashion. If the Owner takes longer than fourteen (14) calendar ATTACHMENT 5-6
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:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 7 days to review a submission, time for performance of services by the Engineer will be extended on a day-by-day basis for all days in excess of the fourteen (14) calendar day review period. The Completion Date will be adjusted as a result of the additional days taken by the Owner to review the submission.
2.2 Schedule.
Within ten (10) calendar days after the Owner issues the initial Notice to Proceed, the Engineer and Owner shall collaboratively prepare a completion and approval schedule of the performance of Engineer’s Services and those of its Consultants and required City approvals for each phase of Services (“Schedule”). This Schedule shall indicate the date by which the Engineer agrees to complete the performance of Basic Services, date of (or, where applicable, periods of elapsed time allowed for) Owner approvals and anticipated approval periods required for public authorities having jurisdiction over the Project, date for completion of Construction Documents, and date for completion of Construction Administration. The Schedule shall be consistent with the time limits for performance of the Agreement set forth herein. Once accepted by Owner, the Schedule will become part of this Agreement and the Engineer will be bound by that Schedule and will not deviate from it without prior written authorization by the Owner.
Whether or not deviations from the Schedule have been authorized by the Owner, the Engineer shall update the Schedule as necessary to reflect Owner approved changes or unavoidable deviations, indicating probable impacts of those deviations on the performance of the Engineer’s Services and the Project. Nothing in this Agreement shall be construed as a waiver of Owner’s right to obtain compliance by the Engineer with the accepted Schedule. Engineer will not be responsible for any delays caused by Owner or those acting under Owner’s control. To the extent that such delays are caused by Owner or those acting under Owner’s control, Owner recognizes that the Schedule of the Engineer will be extended as a result of such Owner controlled delays.
2.3 Excusable Delay.
Any delays in Engineer’s Services caused by the following shall be added to the time for completion of any obligations of Engineer: (1) the actions of Owner or its employees; (2) the actions of those in direct contractual relationship with Owner; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Engineer; and (5) any act of God or other unforeseen occurrence not due to any fault or negligence on the part of Engineer (hereinafter “Excusable Delay”). Neither the Owner nor the Engineer shall be liable for costs or damages, liquidated or otherwise, to the other on account of such Excusable Delays. The Engineer shall, within twenty-one (21) calendar days of the beginning of any Excusable Delay (unless Owner grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement), notify the Owner in writing of the delay. Owner will then ascertain the facts and the extent of the delay, and grant an extension of completion date for Basic Services when, in its sole judgment, the circumstances justify such an extension. Extensions of time shall apply only to that portion of Basic Services affected by the Excusable Delay and shall not apply to other portions of the Services not so affected. The sole remedy of Engineer for extensions of time shall be an extension of the Completion Date, or other interim schedule deadline at no cost to the Owner. If Additional Services are required as a result of an Excusable ATTACHMENT 5-7
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 8 Delay, the Parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement.
2.4 Extraordinary Measures.
In the event Owner determines that the performance of the Services has not progressed or reached the level of completion required by the accepted Schedule and does not constitute an Excusable Delay, the Owner shall have the right to order the Engineer to implement corrective measures within ten (10) calendar days of Owner’s written demand, to expedite the progress of Services, including, without limitation, (1) working overtime, (2) supplying additional personnel or Consultants to perform the Services or other similar measures (hereinafter referred to collectively as Extraordinary Measures). Such Extraordinary Measures shall continue until the progress of the Services complies with the stage of completion required by the Schedule. The Engineer shall not be entitled to an adjustment in compensation in connection with the Extraordinary Measures required by the Owner pursuant to this Section. The Owner may exercise the rights furnished the Owner pursuant to this Section as frequently as the Owner deems necessary to ensure that the Engineer’s performance of Services will comply with the Schedule. If the Engineer fails to implement or commence Extraordinary Measures within ten (10) calendar days of Owner’s written demand, Owner shall have the right to terminate the Engineer for cause.
ARTICLE 3 SCOPE OF ENGINEER'S BASIC SERVICES
3.1 Enumeration of Services.
The Engineer’s Scope of Basic Services is enumerated in Exhibit A, Scope of Services.
3.2 Standard of Care.
Engineer hereby represents that it has the professional experience and skill to perform the Services required to be performed hereunder; that it shall comply with applicable federal, state and local laws, including but not limited to all professional registration (both corporate and individual) for all required basic disciplines; that it shall perform the Services in accordance with generally accepted professional standards and in an expeditious and economical manner; that it has sufficient capital assets and is adequately financed to meet all financial obligations it may be required to incur hereunder and will, if requested by Owner, submit documentation of such assets and finances.
3.2.1 If, at any time during the performance of its Services or during the maximum period permitted by applicable law after completion of same, it is discovered that Engineer or any of its officers, directors, agents, subcontractors, employees, or Consultants has committed any negligent act, error or omission, which has caused or will otherwise cause unnecessary additional expense to Owner, then Engineer shall, at Owner’s request, promptly make all necessary corrections.
3.2.2 Owner recognizes that no set of plans and/or specifications is perfect, that Change Orders can be anticipated, and agrees to act reasonably in its review of any Change Orders submitted under this Agreement. Owner shall monitor the Project for any errors and omissions that are reasonably attributable to Engineer and/or its Consultants.
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K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 9 In the event the Engineer and/or any of its Consultants fails to perform the Services in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances and the accumulative costs proximately caused by the resulting errors and/or omissions exceed an amount that Owner reasonably believes is unjustified, then Owner may, at its reasonable discretion, file a claim against the Engineer for reimbursement of such costs.
3.2.3 For omissions, Engineer will be liable for difference in cost over and above the cost of the work if originally performed. Owner recognizes that it is only the “delta cost” that Engineer may be responsible for, i.e., the difference in cost between the original work if properly performed, and, the work ultimately performed as a result of any omission.
For errors, Engineer will be liable for the cost of the work necessary to correct the error.
Correction of errors and omissions shall include, but not be limited to, additional engineering services, design documentation, travel, demolition, removal, relocation, manufacture, fabrication, construction, testing, and installation proximately caused by said error and omissions.
3.3 Laws and Regulations.
3.3.1 Drawings and Specifications. Engineer shall cause all graphic and pictorial documents showing the design, location, and dimension of the work (“Drawings”) and written requirements for materials, equipment, systems, standards, and workmanship for construction of the work (“Specifications”) to conform to applicable requirements of federal, state and local laws, rules and regulations, in effect as of the time the Drawings and Specifications are prepared or revised during the latest phase of the Services described herein. Engineer has an obligation to monitor changes to applicable laws, rules, and regulations and to promptly advise Owner of any changes that potentially may impact the Project. Any significant revisions made necessary by legislative enactment of changes in such laws, rules and regulations after this time shall be compensated as Additional Services. Engineer shall cause the necessary copies of such Drawings and Specifications to be filed with any governmental bodies with approval jurisdiction over the Project.
3.3.2 Americans with Disabilities Act. Engineer will use its professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act of 1990 (“ADA”) and as contained in the California Code of Regulations. The Americans with Disabilities Act (ADA) provides that it is a violation of the ADA to design and construct a facility for first occupancy later than January 26, 1993, that does not meet the accessibility and usability requirements of the ADA except where an entity can demonstrate that it is structurally impractical to meet such requirements. Owner acknowledges that the requirements of the ADA will be subject to various and possibly contradictory interpretations. Engineer, therefore, will use their reasonable professional efforts to interpret applicable ADA requirements and other federal, state and local laws rules, codes, ordinances and regulations as they apply to the Project. Engineer shall inform Owner of its interpretations of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law. Unless ATTACHMENT 5-9
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 10 Engineer brings such inconsistencies and conflicting interpretations to the attention of the Owner and requests Owner’s direction on how to proceed, the Engineer’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Engineer, and the Engineer shall correct all Drawings, Specifications and other documents prepared for the Project at no additional cost if Engineer’s interpretations are shown to be incorrect.
3.3.3 Permits, Approvals and Authorizations. Engineer shall provide Owner with a list of applicable permits, approvals or other authorizations required for the Project from federal, state or local governmental bodies with approval jurisdiction over the Project. Engineer shall then assist the Owner in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the Owner. Notwithstanding the foregoing, Owner shall be responsible for filing documents required for the approval of governmental authorities having jurisdiction over the Project.
3.3.4 Review of City’s General Conditions. Engineer shall be responsible for reviewing the City’s standard construction agreement for this type of project and shall not duplicate in any way, or submit work product that is in conflict with, the General Conditions of such agreement. Any submitted work product that either duplicates or is in conflict with the General Conditions of City’s standard construction agreement for this type of project shall be rejected and corrected at no cost to the City.
3.3.5 State Prevailing Wage Rates. To the extent that Engineer or its Consultants or subcontractors performs “public works” as described in California Labor Code Section 1720(a)(1), including, but not limited to, inspection and land surveying work, Engineer and its Consultants or subcontractors shall comply with the State of California’s General Prevailing Wage Rate requirements and other laws and regulations applicable to such “public works,” in accordance with California Labor Code, Section 1770 et seq., and all Federal, State, and local laws and ordinances applicable to the work. When prevailing wages apply to the Services described in the scope of work, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination.
When applicable, Engineer and its Consultants and subcontractors shall also comply with all DIR registration and reporting requirements. See http://www.dir.ca.gov.
Notwithstanding the foregoing, this section shall not apply to work involving public works construction of $25,000 or less, or public works alteration, demolition, repair, or maintenance of $15,000 or less.
3.3.6 Occupational Safety and Health Administration (OSHA). Engineer shall comply with OSHA regulations applicable to Engineer regarding necessary safety equipment or procedures. Engineer shall comply with safety instructions issued by Owner’s Safety Officer and other Owner representatives. Engineer’s personnel shall wear hard hats and safety vests at all times while working on the construction project site.
3.4 Reports or Meetings.
Engineer shall submit progress reports at least once a month. The report should be sufficiently detailed for the Owner’s Project Manager to determine, if Engineer is ATTACHMENT 5-10
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 11 performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed. Engineer’s Project Manager shall meet with Owner’s Project Manager, as needed, to discuss progress on the Agreement.
ARTICLE 4 ADDITIONAL SERVICES
4.1 Definition.
The Owner, without invalidating this Agreement, may make changes, additions, and deletions in the Scope of Services or otherwise amend this Agreement. All changes in the Services shall be performed under applicable provisions of the Agreement. Except in an emergency endangering life or property, no Additional Services or change in scope of Services shall be made except pursuant to a written Amendment to this Agreement and no claim for additional compensation or an extension of the Completion Date shall be valid unless so ordered by Owner. At Owner’s request, Engineer may be asked to perform services not otherwise included in this Agreement, not included within the Basic Services enumerated herein and in Exhibit A, and/or not customarily furnished in accordance with generally accepted Engineering practice. As used herein, “Additional Services” shall mean: (1) any services determined by Owner to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary for the Engineer to perform at the execution of this Agreement; or (2) any services listed as Additional Services or Excluded Services in Exhibit A attached hereto. Engineer shall not perform, nor be compensated for, Additional Services without prior written authorization from Owner and without an agreement between the Owner and Engineer as to the compensation to be paid for such Additional Services. Owner shall pay Engineer for completion of any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Engineer. Such Additional Services shall not include any redesign or revisions to Drawings, Specifications or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Engineer was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above.
4.2 Owner’s Authorization of Additional Services.
4.2.1 Minor changes in the Services that involve no extra cost, may be approved, authorized, and ordered by the Owner’s Representative designated in Exhibit B. No other change shall be made nor Additional Services performed except by Amendment to the Agreement with prior written approval from the Owner. If the cost of the Additional Services exceeds any applicable project contingency, the Owner’s City Council must approve the Amendment.
4.2.2 Owner may issue a request, in writing, to the Engineer, describing a proposed addition, deletion or change to the Service and requesting the Engineer to submit a pricing proposal, in a format acceptable to Owner, within fifteen (15) calendar days after Owner’s issuance of the request, or such time as may be reasonably necessary to ensure the extent of the scope change is both clear and can be reasonably priced and the time extension, if any, be reasonably identified. The Engineer’s pricing proposal shall ATTACHMENT 5-11
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:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 12 include an analysis of impacts to cost and time, if any, to perform the addition, deletion or change in Services, as applicable, including the effects and impacts, if any, on unchanged Services. The Engineer’s pricing proposal shall provide sufficient detail and necessary documentation support in a format reasonably acceptable to the Owner for Owner’s review and approval. If Engineer fails to submit a price proposal within such time period, it shall be reasonably presumed that the change described will not result in a change to Engineer’s compensation or Completion Date and the change shall be performed by Engineer without cost adjustment. Owner’s written request for a pricing proposal does not authorize the Engineer to commence performance of the described services. If the Parties reach agreement on the cost of pricing such change(s), an Amendment to the Agreement will be issued in the form attached hereto as Exhibit E-1.
4.3 Engineer Initiated Request for Additional Services.
4.3.1 If the Engineer alleges that instructions issued after the Commencement Date of the Agreement will result in an increase to the compensation or completion of the Engineer's Services or the Engineer otherwise becomes aware of the need for or desirability of additional services, a request for additional services may be submitted to the Owner in writing, in a format acceptable to Owner, and must specify the reasons for such change, including relevant circumstances and impacts on the Schedule. Engineer shall submit a pricing proposal concurrently with the request for additional services.
Engineer may request additional compensation and/or time but not for instances that occurred more than sixty (60) calendar days prior to the request for additional services.
Engineer’s failure to initiate a request for additional services within such period shall be deemed a waiver of the right to adjustment of the compensation or time for completion for the alleged change. Any request for additional services that is approved by Owner will be incorporated in an Amendment. If the request for additional services is denied but the Engineer believes that it does have merit, the Engineer may submit a claim in accordance with the procedures set forth in this Agreement.
ARTICLE 5 OWNER'S AUTHORITY AND RESPONSIBILITIES
5.1 Designated Representative.
The Owner’s Representative for this Project, who shall have the power to act on behalf of the Owner for all purposes under this Agreement except with respect to authorization of Additional Services, is designated in Exhibit B.
5.2 Project Requirements.
Prior to commencement of Engineer’s design services, Owner shall provide an affirmative statement setting forth the design and construction objectives, constraints and criteria for the Project, including space requirements and relationships, flexibility and expandability, special equipment and systems, and site requirements.
Prior to commencement of Engineer’s design services, Owner shall set forth and approve a specific project budget. The budget for the project shall not be significantly increased or decreased, nor shall contingencies be included therein without Engineer’s agreement to a corresponding change in the scope and quality.
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5.3 Site Information.
The Engineer shall obtain all necessary data from the separate but related San Fernando Bikeway Project. This shall include topographical survey, current geotechnical surveys, and utility information, This information shall include, as applicable, grades and lines of streets, alleys, pavements, and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All survey information shall be referenced to a Project benchmark.
Owner shall provide the results of all tests, inspections, and reports regarding the Project in its possession and shall provide Engineer with written notice of any fault or defect in the Project (including errors, omissions or inconsistencies in the Instruments of Service) of which Owner becomes aware.
ARTICLE 6 CONSTRUCTION COST
6.1 Definition.
6.1.1 The Construction Cost shall be the total cost or, to the extent the Project is not completed, the estimated cost to the Owner of all construction related elements of the Project designed or specified by the Engineer.
6.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment and systems designed, specified, selected or specially provided for by the Engineer, including costs for management and/or supervision of construction or installation provided by the general contractor, plus a reasonable allowance for general conditions and requirements, overhead, profit, bonds, and insurance. In addition, a reasonable allowance for construction contingencies shall be included for market conditions at the time of bidding and for potential changes in the work.
6.1.3 Construction Cost does not include the compensation of the Engineer and the Engineer's Consultants, the costs for land, rights-of-way, financing, Owner related project management and/or construction management, and other soft costs that are generally the responsibility of the Owner as provided in Article 5.
6.2 Responsibility for Construction Cost.
6.2.1 Engineer shall collaborate with the Owner to arrive at an estimate of Construction Cost consistent with the Owner’s budget as delineated in Exhibit E “Total Projected Construction Cost”. Engineer has a fiduciary obligation to design the Project in a manner consistent with the current Engineering News Record (ENR) Construction Cost Index allowing for a reasonable cost escalation based on the Owner’s Total Projected Construction Cost (Exhibit E) and the Project Completion Schedule. In the event the Projected Construction Cost for the scope of work the Engineer has been retained to ATTACHMENT 5-13
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 14 design exceeds $2,200,000 by more than 10% after reasonable adjustment for extraordinary market conditions, if any, the Engineer, at its sole expense, shall be responsible for all costs necessary to redesign/revise the Construction Documents such that the Total Projected Construction Cost, as developed, and in collaboration with the Engineer, is within the budget established by the Owner.
ARTICLE 7 USE OF ENGINEER’S INSTRUMENTS OF SERVICE
7.1 Project Documents.
The Drawings, Specifications, sketches, calculations, estimates and other documents prepared pursuant to this Agreement, including in a reproducible computer media format, including AutoCAD, Release 2000 or later, (“Project Documents”) are Instruments of Service. The Project Documents shall be the sole property of Owner and shall be delivered to Owner whenever requested. Engineer shall keep such documents and materials on file and available for audit by the Owner for at least three (3) years after the Notice of Completion for the Project has been recorded with the County or termination of this Agreement, whichever is later. Engineer may make duplicate copies of such materials and documents for its files or for such other purposes as may be authorized in writing by the Owner.
7.2 License.
This Agreement creates a non-exclusive and perpetual license for Owner to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Engineer shall require any and all subcontractors and Consultants to agree in writing that Owner is granted a non-exclusive and perpetual license for the work product of such subcontractors or Consultants performed pursuant to this Agreement. On execution of this Agreement, the Engineer grants to the Owner a non-exclusive license to reproduce the Engineer’s instruments of service solely for purposes of construction, using and maintaining the Project provided that Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Engineer and Engineer’s Consultants shall be deemed the Authors and Owners of the respective instruments of service and shall retain all common law, statutory and other reserved rights, including copyrights.
7.3 Re-Use of Project Documents.
7.3.1 In the event this Agreement is terminated prior to completion of the Project, provided Owner has complied with all obligations, including prompt payment of all sums when due, under this Agreement, the foregoing license shall continue in force and effect, permitting Owner to authorize other similarly credentialed design professionals to reproduce and, where permitted by law, to make changes, corrections, or additions to the Instruments of Service solely for the purposes of constructing, repairing, renovating, modernizing, replacing, reconstructing, or expanding the Project.
7.3.2 In authorizing such similarly credentialed professionals to utilize the Instruments of Service, Owner shall direct each such professional in writing that such ATTACHMENT 5-14
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 15 professional shall not rely on the information contained in the Instruments of Service, but shall make independent investigations to ascertain the validity of such information
7.3.3 The Owner shall protect, defend, indemnify and hold Engineer and Engineer’s Consultants harmless from claims and liability for injury, damage or death resulting from re-use of the Instruments of Services.
ARTICLE 8 INDEMNITY
8.1 Engineer’s Obligation.
To the fullest extent provided by law, Engineer shall defend, indemnify and hold harmless the Owner and its officers, agents, and employees, against all claims for personal injury, property damage, or wrongful death that pertain to, or relate to the negligence, recklessness, or willful misconduct of the Engineer, its officers, agents, and employees.
The Engineer’s obligations under this Section of the Agreement shall survive the termination of the Agreement and the completion of the performance of the work required by the Agreement.
ARTICLE 9 INSURANCE
9.1 General.
9.1.1 Prior to commencing any services hereunder, Engineer and its Consultants shall obtain and maintain policies of insurance of the types and in the amounts set forth below, for the duration of this Agreement or such further period as specified herein, providing coverage for claims arising from or related to Services to be performed under this Agreement.
9.1.2 Engineer shall include all Consultants as insureds under its policies or require that all Consultants maintain the insurance as required by Section. 9.6.
9.1.3 Insurance shall be placed with insurers authorized to transact business (i.e. admitted) in the State of California so as to provide access to the California Guaranty Association and other state regulation or have a "Best's Guide" rating of no less than A- and having been approved as to financial condition in writing by Owner prior to execution of this Agreement.
9.1.4 Prior to commencement of performance, Engineer shall furnish Owner with a Certificate of Insurance for each of its policies. Each certificate is to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificate(s) must be in a form approved by Owner and shall provide evidence of all required coverages stated in this Article 9. Owner may require complete, certified copies of any or all policies at any time. All liability insurance deductibles must be identified in the Certificates of Insurance provided to the Owner. The deductibles for all insurance policies required herein shall be considered a form of self-insurance.
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9.1.5 Each insurance policy included in this clause shall be endorsed to state that coverage shall not be cancelled except after thirty (30) calendar days prior written notice to Owner and state that they are primary and non-contributing.
9.1.6 Failure to maintain required insurance at all times shall constitute a default and material breach of this Agreement. In such event, Engineer shall immediately notify Owner and cease all performance under this Agreement until further directed by the Owner. In the absence of satisfactory insurance coverage, Owner may, at its option: (a) procure insurance with collection rights for premiums, attorney's fees and costs against Engineer by way of set-off or recoupment from sums due Engineer; (b) immediately terminate this Agreement; or (c) self-insure the risk, with all damages and costs incurred, by judgment, settlement or otherwise, including attorney's fees and costs, being collectible from Engineer, by way of set-off or recoupment from any sums due Engineer.
9.1.7 The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as an additional insured and an additional insured named under this Agreement shall not be held liable for any premium or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute toward any loss or expense covered by the insurance provided by this policy. Proceeds from any policy or policies shall be payable to the Owner primarily, and to the Engineer secondarily, if necessary.
9.2 Professional Liability.
Engineer shall obtain and maintain, for the duration of this Agreement and for a period of three (3) years following completion of construction of the Project, to the extent commercially available a professional liability (errors and omissions) standard practice policy. Such coverage shall be in the minimum amount of $1,000,000 per claim and in the annual aggregate of $2,000,000.
9.3 Automobile.
Automobile Liability with minimum limits of at least $100,000/300,000/50,000 for hired and non-owned liability coverage if written on a Commercial automobile liability form.
9.4 General Liability.
Comprehensive General Liability with minimum limits of at least $2,000,000 combined single limits with coverage on an occurrence basis. Premises/Operations and Personal Injury coverage is required. The “City of Burbank, the City Council, and the City’s officers, employees and agents” shall be endorsed on the policy as additional insureds as respects liability arising out of the Engineer's performance of this Agreement. The endorsement shall require the insurance company to provide the City a minimum of thirty (30) calendar days’ notice of cancellation of the policy and ten (10) calendar days’ notice for non-payment of premium. All endorsements to the insurance policy must be approved as to form by the City.
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K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 17 If Engineer employs consultants as part of the services rendered, Contractor’s Protective Coverage is required.
9.5 Worker’s Compensation.
Engineer shall comply with the applicable sections of the California Labor Code concerning workers' compensation for injuries on the job. Compliance is accomplished in one of the following manners:
9.5.1 Provide copy of permissive self-insurance certificate approved by the State of California; or
9.5.2 Secure and maintain in force a policy of workers' compensation insurance with statutory limits and Employer's Liability Insurance with a minimal limit of $1,000,000 per accident, or
9.5.3 Provide a "waiver" form certifying that no employees subject to the Labor Code's Workers' Compensation provision will be used in performance of this Agreement.
9.6 Engineer’s Consultants’ Insurance.
Engineer shall cause its Consultants to obtain and maintain for the duration of this Agreement or such further period as specified herein, all of the coverages described in this Article. Engineer warrants that it shall require all its Consultants to name both the Engineer and the Owner as additional insureds on endorsements to the Consultants’ insurance policies.
ARTICLE 10 PAYMENTS TO THE ENGINEER
10.1 Payments on Account of Basic Services.
10.1.1 Owner shall make payments on a monthly basis for Services properly completed in accordance with the Schedule for Basic Compensation provided in Exhibit C. In order to receive payment, Engineer shall present to Owner an itemized statement which indicates Services performed by Engineer and its Consultants, hours worked at the hourly rates specified, and the amount to be paid. The statement shall describe the amount of Services provided since the initial Commencement Date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period and other information reasonably requested by Owner. The Basis of Payment is hours worked at the hourly rates specified. The hourly rates shall include direct salary costs, employee benefits, overhead, and fee. No deductions shall be made from Engineer’s compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which Engineer has been adjudged in a court of law to be liable.
Payment shall be made for Services performed provided, however, that the amount paid to Engineer shall never exceed the amounts authorized by the Schedule for Basic Compensation or any not-to-exceed amount for additional services as provided in Exhibit C. Owner shall, within thirty (30) calendar days of approving Engineer’s itemized ATTACHMENT 5-17
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 18 statement, pay all approved charges therein, less any applicable mandatory withholding for nonresident individuals and non-California business entities.
10.1.2 Reimbursable Expenses. Engineer shall, at its sole cost and expense, furnish all necessary and incidental labor, materials, supplies, facilities, equipment, and travel which may be required for furnishing Services pursuant to this Agreement.
Engineer shall be reimbursed for the expenses identified as Reimbursable in Exhibit C which are reasonably and necessarily incurred by Engineer in the interest of the Project but in no event shall such Reimbursable Expenses result in an increase in the total Cost of Services without prior written approval by Owner in accordance with Article 4 herein.
Engineer shall obtain Owner’s prior written approval for reimbursement of: 1) expedited delivery charges not due to delay by Engineer; 2) extraordinary or out-of-town travel expenses; 3) document reproduction costs in excess of $250 (including any applicable sales tax); and 4) any individual cost, fee or expense in excess of $500.
10.2 Payments on Account of Additional Services.
10.2.1 Procedures for payments for Additional Services may be made based on percentage completion of a Lump Sum Amount or according to hourly rates, provided that, in any event, Additional Services shall be separately itemized on Engineer’s statement. Engineer expressly waives any right to payment for any Additional Services rendered if Engineer does not give written notice of its claim that the services are Additional Services prior to rendering such services and if such services are not billed as Additional Services within ninety (90) calendar days following their initiation. The method for computing the amount of Additional Services is described in Exhibit C.
10.2.2 Hourly Rates for compensation in Exhibit C include the direct salaries and wages of the Engineer’s personnel and its Consultants engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, including, but not limited to, employment taxes and other statutory employee benefits, insuring sick leave, holidays, vacations and employee retirement plans, allocable to this Project as well as overhead and profit. Engineer’s hourly rates shall include all professional time and all clerical, administrative, overhead, insurance, reproduction, telephone, and transportation expenses. Engineer’s hourly rates, including the Engineer’s Consultant rates accepted by the City, shall remain constant throughout the duration of the Project, including in-house staff that may be promoted.
10.3 Payments Withheld.
To the extent the Owner has any rights to withhold disputed amounts on payment pursuant to Civil Code § 3320, the Owner agrees to abide by all provisions of Civil Code §3320, and withhold only payments authorized therein. The Owner further agrees to be governed by all provisions of §3320.
ARTICLE 11 OTHER CONDITIONS OR SERVICES
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11.1 Independent Contractor.
11.1.1 Owner retains Engineer on an independent contractor basis and not as an agent or employee of Owner. Engineer has and shall retain the right to exercise full control over the employment, direction, compensation, and discharge of all persons employed by Engineer in the performance of the Services hereunder. Engineer shall be solely responsible for, and shall indemnify, defend and save Owner harmless from all matters relating to the payment of its employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, and regulations.
11.1.2 Engineer acknowledges that any Consultants, subcontractors, agents or employees employed by Engineer shall not, under any circumstances, be considered employees of the Owner, and that they shall not be entitled to any of the benefits or rights afforded by Owner to Owner’s employees, including, but not limited to, sick leave, vacation leave, holiday pay, benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits.
11.2 Assignment.
The Owner and Engineer, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Engineer shall not assign this Agreement without the Owner’s written consent. The Owner may freely assign its rights hereunder, without limitation, to a separate entity and Engineer agrees, upon such entity's request, to continue and complete performance of the Services upon payment of any undisputed outstanding amounts due Engineer for services performed provided, however, that Owner shall not be relieved of its obligations under this Agreement and that the assignee shall agree in writing to perform all of the obligations of Owner hereunder. Any entity that shall succeed to the rights of Owner shall be entitled to enforce the rights of Owner hereunder.
If requested by such entity, Engineer will execute a separate letter or other agreement with such entity, further evidencing Engineer's commitment to continue performance of this Agreement.
11.3 Correction of Work.
Engineer shall promptly correct any defective, inaccurate or incomplete tasks, deliverables, goods, and other services required by this Agreement, without additional cost to the Owner. The performance or acceptance of services furnished by Engineer shall not relieve the Engineer from the obligation to correct subsequently discovered defective, inaccurate or incomplete tasks.
11.4 No Waiver or Estoppel.
The Owner's waiver of any term, condition, breach or default of this Agreement shall not be considered to be a waiver of any other term, condition, default or breach.
Owner shall not be precluded or estopped by any return, certificate, or approval made under any provisions of this Agreement before or after final completion of the Project and final payment to Engineer, from showing that any such return, certificate or approval is untrue, incorrect or improperly made or from demanding recovery from Engineer such damages as Owner may sustain as a result of Engineer’s fault.
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11.5 Interpretation.
11.5.1 This Agreement shall be governed by the laws of the State of California.
11.5.2 If any provision in this Agreement is held by any court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such portion shall be deemed severed from this Agreement, and the remaining provisions shall nevertheless continue in full force and effect as fully as though such invalid, illegal, or unenforceable portion had never been part of this Agreement.
11.5.3 Each and every provision and clause required by law to be inserted in the Contract Documents shall be deemed to be inserted herein.
11.6 Duplicate Originals.
There shall be three (3) fully signed sets of this Agreement, each of which shall be deemed an original.
11.7 Maintenance and Inspection of Records
Upon reasonable advanced notice, the Owner, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the records to the extent the Owner deems necessary to insure it is paying only the amounts to which Engineer is properly entitled under the Agreement or for other purposes relating to the Agreement.
11.7.1 The Engineer shall maintain and preserve all such records for a period of at least three (3) years after termination of the Agreement.
11.7.2 In the event the Owner desires to perform any audit of the Engineer’s ledgers for this Project at Owner’s expense, the Engineer will cooperate with such audit by making all its records available.
11.8 Conflict of Interest.
Engineer hereby represents, warrants, and certifies that no member, officer or employee of the Engineer is a director, officer or employee of Owner, or a member of any of its boards, commissions or committees except to the extent permitted by law.
11.9 Notices.
11.9.1 Any notice or demand to be given by one party to the other shall be given in writing (including, but not limited to, e-mail communication) and by personal delivery or prepaid first-class, registered or certified mail, addressed as follows:
If to the Owner: City Clerk
City of Burbank
275 E. Olive Avenue
P.O. Box 6459
Burbank, CA 91510-6459
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cc:
David Kriske
Assistant Community Development Director
150 North Third Street
Burbank, CA 91502
818-238-5269
[email protected]
If to the Engineer: Jean Fares, PE
Senior Vice President
21820 Burbank Boulevard, Suite 230
Woodland Hills, CA 91367
747-900-8400
[email protected]
Notice simply to the City or any other City department is not adequate notice.
11.9.2 Any such notice shall be deemed to have been given upon delivery, if personally delivered, or, if mailed, via Certified Mail, upon receipt or upon expiration of five (5) calendar days from the date of posting, whichever is earlier. Either party may change the address at which it desires to receive notice upon giving written notice of such request to the other party.
11.10 Publicity and Confidentiality of Material.
11.10.1 The Engineer and its agents and employees shall not engage in any communication or correspondence with persons not directly involved in the construction of the Project, concerning any aspect of the construction of the Project, without the express written consent of Owner. All communications to the media, or in response to inquiries made by private citizens, shall be issued solely through the Owner. Upon completion of the Project, the Owner will not unreasonably withhold its approval of Engineer communicating with media and others relative to this Project.
11.10.2 Engineer may, during the course of providing its Services hereunder or in relation to this Agreement, have access to and acquire knowledge regarding materials, data, systems and other information of or with respect to Owner which may not be accessible or known to the general public (“Confidential Information”). Confidential Information that is specific as to techniques, equipment, processes, products, concepts or designs, etc. shall not be deemed to be within the knowledge of the general public merely because it is embraced by general disclosures in the public domain. Any knowledge acquired by Engineer from such Confidential Information or otherwise through its engagement hereunder shall not be used, published or divulged by Engineer, to any other person, firm or corporation, or used in any advertising or promotion regarding Engineer or its services, or in any other manner or connection whatsoever without first having obtained the written permission of Owner, which permission Owner may withhold ATTACHMENT 5-21
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 22 in its sole discretion. Engineer specifically agrees that the foregoing confidentiality obligation applies to, but is not limited to, any information disclosed to Engineer in any document provided to Engineer by Owner which may not be accessible or known to the general public, including but not limited to, a Request for Proposal, Request for Estimate, Request for Quotation and Invitation to Bid. The provisions of this Article shall survive the expiration or earlier termination of this Agreement.
Engineer’s duty to refrain from disclosing information designated as “Confidential Information” shall not apply if withholding such information would violate the law, create the risk of significant harm to the public or prevent Engineer from establishing a claim or defense in an adjudicatory proceeding. In the event Engineer determines that disclosure is necessary for the foregoing reasons, they shall immediately notify Owner of such determination in order that Owner may, at its option and its sole expense, seek in a timely fashion a protective order, or such other remedy, as it may determine appropriate. In the event that disclosure of any Confidential Information is ordered by a court or administrative agency, Engineer shall give Owner not less than ten (10) business days’ notice, in writing, of such disclosure.
11.11 Contingent Fee.
Engineer warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Engineer for the purpose of securing business. For breach or violation of this warranty, Owner has the right to annul this Agreement without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the Agreement price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
11.12 Rebates, Kickbacks, or Other Unlawful Consideration.
Engineer warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, Owner shall have the right in its discretion; to terminate the Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the Agreement price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
11.13 Audit Review Procedures
11.12.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by the Owner’s Financial Services Director.
11.12.2 Not later than 30 days after issuance of the final audit report, Engineer may request a review by Owner’s Financial Services Director of unresolved audit issues.
The request for review will be submitted in writing.
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11.12.3 Neither the pendency of a dispute nor its consideration by Owner will excuse Engineer from full and timely performance, in accordance with the terms of this Agreement.
11.14 Funding Requirements
This Agreement is financed with funding from the State of California Funds Transfer Agreement Project ID PLBP-5200(052). Consultant shall comply with all applicable Funding Source requirements, including but not limited to, requirements included in any funding agreement between the City and the Funding Source, and any applicable laws, policies, or procedures. Copies of relevant Funding Source documents are incorporated and attached as Exhibit F.
It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.
This Agreement is valid and enforceable only, if sufficient funds are made available to Owner for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or Owner governing board that may affect the provisions, terms, or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds.
Owner has the option to void the Agreement under the 30-day termination clause pursuant to Article 12, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
11.15 Claims Filed by Owner’s Construction Contractor
If claims are filed by Owner’s construction contractor relating to work performed by Engineer’s personnel, and additional information or assistance from Engineer’s personnel is required in order to evaluate or defend against such claims; Engineer agrees to make its personnel available for consultation with Owner’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
Engineer’s personnel that Owner considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from Owner. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Engineer’s personnel services under this Agreement.
Services of Engineer’s personnel in connection with Owner’s construction contractor claims will be performed pursuant to a written amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
ARTICLE 12 TERMINATION OR SUSPENSION
12.1 Termination by Owner for Cause.
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K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 24 Owner shall have the right to terminate Engineer under this Agreement upon written notice, effective immediately unless otherwise provided in said notice, if Engineer shall fail to commence the Services in accordance with the provisions of this Agreement or fail to diligently perform the Services, fail to use acceptable personnel or Consultants, fail to perform any of its obligations under this Agreement or any other Contract Document, or fail to make prompt payments to its Consultants. Any such act by Owner shall not be deemed a waiver of any other right or remedy of Owner. If Owner terminates Engineer for cause, Owner agrees to immediately proceed with a Meeting of Principals to determine a proper accounting for all services rendered by Engineer. If the Meeting of Principals fails to result in an appropriate agreement as to solution of costs for termination, Owner and Engineer agree to proceed with the mediation, arbitration, or legal proceedings as set forth in Article 13.
12.2 Termination by Owner for Convenience.
12.2.1 Owner shall have the right to terminate Engineer under this Agreement for its convenience without regard to fault or breach upon written notice, effective immediately unless otherwise provided in said notice. In the event of such termination, Owner shall pay as the sole amount due to Engineer in connection with this Project sums due hereunder for Services performed to date plus reasonable demobilization costs incurred due to such termination. Such sums will be due and payable on the same conditions as set forth for final payment to the extent applicable. Upon receipt of such payment, the parties hereto shall have no further obligations to each other except for Engineer's obligation to indemnify Owner and maintain any insurance as provided for in this Agreement. It is understood and agreed that no fee, anticipated profit or other compensation or payment of any kind or character shall be due or payable for unperformed Services regardless of the basis of termination and the inclusion of this provision within this subsection shall in no way limit its application to termination under this subsection. Engineer agrees that each agreement with any Consultant entered into by it will reserve for Engineer the same right of termination provided by this subsection.
12.2.2 Upon a determination that any termination of Engineer or its successor in interest was wrongful, such termination will be deemed converted to a termination for convenience pursuant to the proceeding provisions hereof and Engineer's remedy for wrongful termination in such event shall be limited to the recovery of the payments permitted for termination for convenience as set forth above.
12.2.3 The rights and remedies of Owner and Engineer in the event of termination herein set forth shall be non-exclusive, and shall be in addition to all the other remedies available at law or in equity.
12.3 Engineer’s Duty Upon Termination.
If Owner terminates Engineer under this Agreement or if Engineer terminates a Consultant with Owner’s approval, Engineer shall deliver all Deliverables, documents, records, reports, logs, diaries, estimates, contractor submittals and other items produced or purchased pursuant to this Agreement by Engineer and/or its Consultants, as applicable, to Owner in an organized, usable form with all items properly labeled to the degree of detail ATTACHMENT 5-24
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 25 specified by Owner. No compensation shall be due Engineer until it complies with the requirements of this paragraph.
12.4 Partial Deletion or Suspension of Services.
12.4.1 Engineer agrees that the Owner may determine whether any or all of the Services described in this Agreement shall be deleted or its performance suspended without electing to terminate the Engineer's performance under the Agreement and without any penalty being incurred by Owner. Any such partial deletion or suspension of the Services shall in no way void or invalidate this Agreement nor shall it provide Engineer any basis for seeking payment from Owner for Services deleted or suspended except to the extent such Services have already been performed and are otherwise billable under this Agreement, and Owner shall have the right to later have any Services suspended or deleted from this Agreement performed by others without any penalty to Owner. In the event of any such partial or complete deletion or suspension, Owner shall furnish Engineer with prompt written notice thereof and Owner shall be entitled to have as its property all documents, records, logs, drawings, calculations, reports and other data prepared by or assets purchased by Engineer or Consultants, of any tier, and shall pay Engineer therefore. The Owner may require Engineer to perform Services later during the term of this Agreement which were earlier deleted or suspended. Engineer shall not resume any such Services until the Owner has issued a written notice to proceed or a change order. Engineer shall identify the sequence of its deliverables for the Owner's review and acceptance. In the event Owner directs Engineer to perform work out of sequence, additional Engineering fees may be due the Engineer.
12.4.2 If the Project is suspended by Owner for more than thirty (30) consecutive calendar days, Engineer shall be compensated for services performed prior to notice of such suspension, as well as expenses incurred in the interruption and resumption of Engineer’s services.
12.4.3 If the Engineer’s services are suspended for more than one hundred and eighty (180) consecutive calendar days, Engineer shall be able to terminate this Agreement.
12.5 Manner of Payment Upon Termination, Partial Deletion or Suspension of Services.
Upon any deletion, suspension or termination by the Owner and upon receipt of a final certified invoice with one (1) original and two (2) copies, Owner shall pay Engineer the amount, excluding disputed amounts, as determined by the Owner, due for the Services performed prior to such deletion, suspension or termination, less amounts previously paid.
12.6 If Owner fails to make payments to Engineer in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at Engineer’s option, cause for suspension of performance of services.
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K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 26 ARTICLE 13 DISPUTE RESOLUTION
13.1 Notice of Dispute Regarding Engineer's Services
If Engineer and Owner cannot agree as to the quality or acceptability of the Services, or whether Additional Services are required and/or the compensation payable to Engineer under this Agreement, Owner or Engineer may promptly give to the other a written notice thereof and, within sixty (60) calendar days after the event giving rise to the dispute, Engineer and Owner shall each prepare a report which supports their respective positions and file the same with the other party. Engineer's report shall include any possible claims against Owner, including the amount of additional compensation requested. Thereafter, the Owner shall, with reasonable diligence, determine the quality or acceptability of Services, or whether a change in the Services is required, and/or the compensation payable to Engineer.
Submittal of the matter to Owner, as required by this Section, is a prerequisite to the right of Engineer to contest any such matter in judicial or other proceedings and Engineer expressly waives any right to so contest any decision(s) of Owner unless it has first presented the matter to Owner and within the time limits as provided herein.
13.2 Resolution of Disputes
To the extent there is any disagreement as to any services rendered by the Engineer pursuant to this Agreement, the Owner and Engineer agree to immediately convene a Meeting of Principals. The Meeting of Principals will require the attendance of Senior Vice President on behalf of Engineer, and the attendance of the Community Development Director and/or their designee on behalf of the Owner. The Principals will attempt to resolve any question arising out of, or related to disagreement on an informal basis, and shall endeavor to resolve claims, disputes, and other matters in question between them. The Meeting of Principals shall be a condition precedent to mediation (if agreed upon by the Parties), arbitration (if agreed upon by the Parties), or institution of any litigation. All efforts will be made by both the Engineer and the Owner to avoid any formal mediation, arbitration, or other legal proceeding.
13.3 Failure or Refusal to Informally Resolve Disputes
If, for any dispute or claim to which this Section applies, any party commences an action without first attempting to resolve the matter through a Meeting of Principals, or refuses to participate in the Meeting of Principals after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.
ARTICLE 14 ENUMERATION OF CONTRACT DOCUMENTS
14.1 Contract Documents.
14.1.1 This Agreement represents the entire and integrated agreement between the Owner and the Engineer and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written amendment signed by both Owner and Engineer.
14.1.2 The “Contract Documents,” except for amendments issued after execution of this Agreement, consist of the following documents, all of which are either attached ATTACHMENT 5-26
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 27 hereto as Exhibits or are incorporated into this Agreement by this reference, with the same force and effect as if same were set forth at length herein;
This Agreement, including all exhibits and attachments:
Exhibit A – Scope of Services;
Exhibit B – Designated Representatives, Key Personnel, and Consultants; Exhibit C – Basic Compensation, Hourly Rates and Reimbursable Expenses; Exhibit D – Administrative Forms;
Exhibit E – Total Projected Construction Cost.
Exhibit F – Funding Source Document
ATTACHMENT 5-27
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 28 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below.
The Engineer hereby represents and warrants to the Owner that the Engineer has the right, power, legal capacity and authority to enter into and perform its obligations under this Agreement, and that signature and execution of this Agreement has been duly authorized.
"ENGINEER"
___________________________
Signature
____________________________
Name (please print)
____________________________
Title
"OWNER"
____________________________
Signature
Patrick Prescott ________________
Name (please print)
Community Development Director
Title
If Engineer is a corporation or LLC, a
second signature is required:
___________________________
Signature
____________________________
Name (please print)
____________________________
Title
ATTEST:
Office of the City Clerk
Zizette Mullins, MMC, City Clerk
Approved as to Form:
Burbank City Attorney’s Office
Lisa Kurihara, Senior Assistant City
Attorney
ATTACHMENT 5-28
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 29
EXHIBIT A – SCOPE OF SERVICES
I. PROJECT PARAMETERS
A. Time Parameters. Based on the completion of a mutually acceptable Completion Schedule by the Engineer and Owner, the following schedule milestone dates are targeted and anticipated at the time this ESA was generated and approved.
Deliverable To be delivered at the
completion of task (s):
1. Plans, Specifications, and Estimates 2
2. All applicable Specification Sections 2
3. Closeout documentation Closeout
4. O&M manual 3
Task Duration
Est.
Duration
(Months)
Task 1- Project Management 18
Task 2 – Construction Documents 12
Task 3 – Maintenance Manual 1
Task 4 – Construction Phase Support 36
Task 5 – Metro / Metrolink Coordination 18
Estimated Work Duration in Months 36
B. Fixed Limit of Construction Cost. The current Project budget for the work to be completed by Engineer is $2,200,000.
C. Project Understanding: This project consists of designing landscaping, landscape irrigation system, and minor hardscape/sidewalk along the west side of the Metro/Metrolink Valley Line right of way between just south of Hollywood Way and just north of the Burbank Animal Shelter.
II. SCOPE OF BASIC SERVICES
Engineer shall perform the following Services (“Basic Services”) for the benefit of the City. All deliverables provided under this Agreement shall be in form and substance reasonably satisfactory to City.
A. Specific Tasks:
ATTACHMENT 5-29
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 30 Engineer will perform the following services:
Task 1: Project Management
ENGINEER will attend meetings with City staff and stakeholder representatives at and in between periodic project milestones. Individual tasks during this phase typically include additional meetings (in-person/virtual), telephone calls and conferences, memos, emails, and other typical forms of business communication. The kickoff meeting established the guidelines and specific design criteria and expectations. Additional coordination provides for a continuum of information to be received and conveyed as well as opportunities to provide input, progress updates, and general information about the project.
ENGINEER has allocated up to forty-five (45) hours for this task for PDT meetings and governing agency coordination and up to twelve (12) hours for additional cost accounting.
This task also includes up to ten (10) hours of ENGINEER’s efforts for project and sub management.
Task 2: Field Review
ENGINEER will gather site specific information relative to the intended landscape improvements. Existing document review includes review of plans, reports, studies, and utility information. The time committed to this task will be shared between the San Fernando Bikeway project and the Little San Fernando Bikeway project.
ENGINEER shall conduct a site visit to observe and digitally document existing conditions of the site limits identified in Exhibit C. Any existing conditions that may influence the design solution will be discussed with the City and documented digitally.
ENGINEER has allowed for up to two (2) site visits in order to conduct the Field Review tasks.
Task 3:
Construction Documents (PS&E 60/90/100)
Per the defined limits included in this scope of work and from the direction in the grant scope of work in Exhibit F, ENGINEER will prepare landscape plans inclusive of planting and recycled water irrigation system for the site. Based on the site location, it is our understanding that a Fuel Modification Plan will not be required.
Construction documents will be prepared at an agreed upon scale on 24"x36" sheet, conforming to all local, state, and federal requirements, in particular City of Burbank, Caltrans and the County of Los Angeles.
We anticipate the landscape plan set to include:
Title sheet/vicinity map
Referenced standard drawings
Irrigation plans
Planting plans
Appropriate notes and development details, and
CSI technical specifications for the landscape design elements.
Plans, specifications, and statements of probable construction cost will be submitted at 60%, 90%, and 100% stages of completions for agency plan check and comment.
Comments and corrections received will be addressed prior to progressing the plans toward the next stage of completion.
ATTACHMENT 5-30
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 31 100% documents will be submitted with a statement of probable construction costs relative to bid item quantities for formal plan check by the City and applicable governing agencies. Prior to Notice to Bid, one -set of stamped and signed reproducible electronic documents will be submitted to City for inclusion in the final construction bid package.
Task 4:
Maintenance Manual
ENGINEER will develop a maintenance manual to be used by the City to conduct maintenance operations owned and maintained on the City owned property of the San Fernando Bikeway.
The purpose of the maintenance manual will be to provide maximum health for the landscape plant material while minimizing the impact to and any adverse effects on the environments. The document will address guidelines for plant material, weed control, mulch, fertilizer/soil amendments, irrigation system, and provide monitoring maintenance operation guidelines. A plant palette will be included to provide reference to the plant material approved for the project site.
Task 5:
Construction Phase Support
ENGINEER will provide construction phase support to be billed hourly to provide responses to RFI/RFCs, review submittals, site visits, meetings, and coordination.
Task 6: Metro Comment Coordination
ENGINEER has allowed for three separate reviews at 60%, 90% and 100% submittal.
Included within each review: clarification of comments, documentation of changes, and plan revisions. All proposed changes require approval from the City of Burbank prior to any plan modification. The time committed to this task will be shared between the San Fernando Bikeway project and the Little San Fernando improvements project.
ATTACHMENT 5-31
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 32
Limits of Project Scope of Work
Exclusions/Assumptions
Per the Grant Agreement Scope document, the following are determined to be completed by others and thereby excluded from ENGINEER's proposed scope of services:
Grading, clearing, and temporary railroad ballast removal. Right of way remediation of previous construction damage that could include grading, landscaping, sidewalk, curb, gutter, and street trees. Soils management report prepared by others on the team will be assessed for the landscape design.
Additional limits of landscape and irrigation improvements. Project management and meetings and coordination beyond the estimated number of hours noted in this scope of service will require a separate amendment to be approved.
Irrigation water meter and point of connection design will be completed by BWP and provided to the project team for use in irrigation design. Preparation of grading plans for the expanded landscape limit area is assumed to ATTACHMENT 5-32
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 33 be not required per discussion with City representative staff.
Reimbursable Expenses
Mileage at current IRS allowable rate and parking expenses incurred by office employees are charged at cost. Prints, plots, messenger service, subsistence, air travel, and other direct expenses will be charged at cost plus ten percent. The services of outside consultants will be charged at cost plus fifteen percent.
Deliverables:
All deliverables shall be provided to Owner in electronic media and, paper format. All appropriate files shall be provided in MS, AutoCAD and PDF formats.
B. Requirements for Performance of Basic Services:
1. Project Administration Services.
a. Inter-Disciplinary Coordination/Document Checking.
i. Integration. Engineer shall be responsible for a
complete, integrated, and coordinated Project design and for the coordination of all Drawings, Specifications, and other necessary and complete design documents relating to the Services to be used on and for the Project, regardless of whether such drawings, specifications, and documents are prepared by the Engineer, its Consultants, or Owner’s consultants. Engineer shall be responsible for the coordination and internal checking of all drawings and for the accuracy of all dimensions and layout information contained therein, as fully as if each Drawing were prepared by the Engineer. Engineer shall be responsible for the completeness, accuracy, constructability, and bid-ability of all drawings, specifications, and other construction documents submitted by and/or through the Engineer.
ii. Design Delegation to Contractor(s). Engineer shall be permitted to delegate design responsibility only with the advance written authorization of the Owner for specific components of the design. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor(s) for construction, the Engineer shall specify appropriate design and performance criteria that such services must satisfy, and the qualifications necessary to perform the services and shall review the work product of the Contractor(s) delegated design for conformity to the design and performance criteria.
Such design and performance criteria shall be enumerated in the final Construction Documents.
iii. Design Delegation to Owner. Before performing any design services, the Engineer shall inform the Owner in writing as to which of the information designated in this Agreement as “Owner-provided” is necessary for the performance of the Engineer’s Services. Upon the Owner’s request, the Engineer shall, as a Basic Service, prepare the scope of work for such services and identify qualifications necessary for such services as well as a list of consultants that the Engineer believes to ATTACHMENT 5-33
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 34 be reputable, competent, and appropriately licensed to perform such services. The Engineer shall submit this request and list for Owner’s approval and shall assist Owner in selecting such consultants.
2. Design Services.
a. Construction Documents Phase Services.
Based on the Owner approved Design Development Phase documents generated and provided by the Engineer, and any further adjustments in the scope and quality of the Project or in the Construction Budget previously authorized by the Owner, the Engineer shall prepare Construction Documents (CDs) consisting of Drawings and Specifications setting forth in detail the requirements for construction of the work of the Project in accordance with the requirements of the Program and other applicable laws, current building codes, and regulations including: final structural, mechanical, electrical, and civil engineering calculations. The CDs shall be comprehensive and coordinated between all disciplines and all off-site and on-site drawings, and shall include a complete and coordinated Project Manual (Specifications). The Engineer shall also incorporate corrections as required by plan check(s). Conduct periodic meetings as required with the Owner and required consultants during design and pre-construction and prepare and circulate minutes to Owner and revise as required. Upon ninety percent (90%) completion of the CDs, the Engineer shall meet with the Owner and designated representatives to present the CDs, address specific concerns, review the latest projected estimate of Construction Cost and obtain Owner’s acceptance of such CDs. The final CDs shall set forth in detail the Work to be constructed including materials, workmanship, finishes, and equipment required for the building systems, utility service connections, equipment, off- site, and on-site work. The final CDs must be in such a form to enable Owner to secure required permits and approvals from all federal, state, regional, and/or local agencies concerned with the Project and to enable Owner to obtain, by competitive bidding or otherwise acceptable to Owner, a responsible and responsive bid within the applicable construction budgetary limitations. The final CDs shall be in a reproducible computer media format acceptable to Owner. Engineer’s obligation to provide Drawings to Owner in the requested reproducible format shall be at Owner’s expense.
3. Cost Estimate Services.
Engineer shall provide two (2) separate cost opinions based on completion of the fifty percent (50%) and eighty percent (80%) completed Construction Documents as a measure of assurance to the Owner that the completed Construction Documents, when bid within the Southern California Region and under current prevailing market conditions, that such estimate will be within an accepted range of no more than ten percent (10%) of the Owner’s Total Projected Construction Cost as further defined in Exhibit E. Also see article 6.2.1 of this Agreement for further information.
4. Plan Check & Bid Phase Services.
The Engineer shall coordinate the initial, back-check(s), and final plan check process as necessary to secure all necessary Construction Documents approvals from ATTACHMENT 5-34
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 35 all federal, state, regional, and/or local agencies. In addition, Engineer shall distribute required addenda, supplementary drawings, specification revisions, instructions, and notices of changes in the bidding schedule and procedure as may be required; and evaluating requests for substitutions of materials or equipment. Engineer shall attend a pre-construction conference and/or job site walk scheduled with respect to commencing the Work.
5. Construction Administration Phase Services.
a. Submittal Review .
Engineer shall process all Contractor submittals. Engineer shall distribute submittals to its consultants, contractors, and Engineer’s Consultants as required to fully maintain, at all times, the Construction Schedule. The Contractor will be required to provide the Owner with only those submittals the Owner requests in writing.
The Engineer shall review and approve or take other appropriate action upon the Contractor's submittals such as shop drawings, product data, and samples for the purpose of checking for conformance with information given and the design concept expressed in the Contract Documents, for assuring compliance with applicable laws, statutes, ordinances, codes, orders, rules, and regulations, and for assuring that the Work affected by and represented by such submittals is in full compliance with the Contract Document requirements. Engineer shall be responsible for determining what aspects of the Work shall be the subject of shop drawings and submittals. Engineer shall not knowingly permit such aspects of the Work to proceed in the absence of approved shop drawings and submittals. The Engineer's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the construction by the Owner's own forces or by Separate Contractors, while allowing sufficient time in the Engineer's professional judgment to permit adequate review, but in no case shall the time exceed fourteen (14) calendar days for its review and subsequent instruction to the Contractor.
b. Site Visits and Reports.
i. The Engineer and its Consultants, as representatives of the Owner, shall visit the site at intervals appropriate to the stage of the Contractor’s operations, progress, and completion efforts, or as otherwise agreed by the Owner and Engineer to (1) become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) endeavor to guard the Owner against defects and deficiencies in the Work, and (3) determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. The Engineer shall carefully review the quality and quantity of the Work at least on a monthly basis as part of the Engineer’s Basic Services and shall identify Work not in conformance with the Construction Documents. The Engineer shall report to the Owner known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor.
ii. Neither the professional activities of the Engineer, nor the presence of its employees and Consultants at the construction site, shall relieve the General Contractor and any other entity of their obligations, duties and responsibilities ATTACHMENT 5-35
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 36 including but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all portions of the Work of construction in accordance with the Contract Documents and any health or safety precautions required by any regulatory agencies. The Engineer and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. The Owner agrees that the General Contractor is solely responsible for jobsite safety, and warrants that this intent shall be made evident in the Owner’s agreement with the General Contractor.
iii. The Engineer shall have authority to recommend in
writing that the Owner reject Work that does not conform to the Contract Documents.
Whenever the Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Engineer shall have authority to recommend in writing that Owner require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed.
c. Testing and Inspection Administration. Engineer and its Consultants shall evaluate compliance by Owner’s testing and inspection consultants and agencies with required scope, standards, and procedures. Engineer and its Consultants shall review reports on inspections and tests and provide notification(s) to Owner and Contractor(s) of observed Work deficiencies.
d. RFI Response and Supplemental Documentation.
i. Engineer shall answer all Contractor initiated
Requests for Interpretation (or Information) ("RFI's") in writing and shall prepare, reproduce, and distribute supplemental details, drawings, specifications, and/or supplemental instructions as necessary, within five (5) business days. Engineer’s interpretations and decisions shall be consistent with the intent of, and reasonably inferable from, the Contract Documents and shall be in writing or in the form of drawings.
ii. Engineer shall periodically issue revised Drawings
and Specifications that implement and reflect all answers to RFI’s, including details and sketches prepared to address field conditions, Change Orders and Construction Change Directives (CCDs) and shall provide copies of the updated documents to Owner and Contractor so Contractor can maintain an up-to-date field record document set. Engineer shall issue updated documents in intervals of no greater than ninety (90) calendar days.
This requirement shall be a condition precedent to the Engineer’s request for periodic monthly payment.
b. Contractor Change Requests.
i. Prepare, reproduce, and distribute Drawings,
Specifications, and other necessary forms such as Engineer’s Supplemental Instructions (ESI), supporting documents, and data to describe any Work to be added, deleted, and/or modified for Owner approval and execution.
ATTACHMENT 5-36
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 37
ii. Review Contractor change proposals for
reasonableness and accuracy of scope, quantities and costs of labor, equipment, and materials only if so directed by Owner. It is the Owner’s specific intent to only involve Engineer on a case-by-case basis in the event that such involvement is deemed necessary by the Owner to facilitate its review and acceptance of such Contractor change proposals.
iii. Review and make recommendations relative to
Contractor’s change requests in the time for completion of construction.
iv. Any such change proposals shall be processed by
the Engineer within a reasonable time but in no event shall be in excess of twenty-one (21) calendar days after Owner’s request.
c. Certificates for Payment.
i. The Engineer shall not be required to maintain
records of payments of the Construction Cost including Change Orders.
ii. If requested by Owner, the Engineer shall
promptly process Contractor Applications for Payment by simply providing its signature to the Application and Certificate for Payment based on the verbal or written request by Owner and shall promptly return such documentation to the Owner’s Representative for further processing. The Owner recognizes that Engineer is simply providing an administrative function and will not be required to review the completeness and/or accuracy of the Certificate for Payment.
d. Interpretation. The Engineer shall render written decisions within a reasonable time, but in no event in excess of fourteen (14) calendar days, on claims, disputes or other matters in question between the Owner and Contractor as provided in the Contract Documents.
e. Project Closeout. The Engineer shall conduct inspections and generate a Master Punch List to determine the date or dates of Substantial Completion to permit the Owner’s beneficial occupancy including: a detailed inspection with the Owner’s Representative and/or Owner’s staff for conformity of the Work to the Contract Documents to verify the list submitted by the Contractor of items to be completed or corrected; determination of the amounts to be withheld from Contractor until final completion; securing and receipt of consent of sureties to reduction or partial release of retainage or the making of final payment; issuance of Certificate of Substantial Completion; inspections upon notice by the Contractor(s) that the Work is ready for final inspection and acceptance; notification to Owner and Contractor(s) of deficiencies found in follow-up inspections, if any; final inspection with the Owner’s Representative and/or Owner’s staff to verify final completion of the Work; receipt and transmittal of warranties, guaranties, affidavits, receipts, releases, and waivers of stop notice and bond rights; and issuance of final certificate for payment to Contractor(s) and the date of final completion, shall receive from the Contractor and forward to the Owner, for the Owner's review and ATTACHMENT 5-37
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 38 records, written warranties and related documents required by the Contract Documents and assembled by the Contractor, and shall issue a final Certificate for Payment based upon a final inspection indicating the Work complies with the requirements of the Contract Documents.
f. Record Drawings and As-Builts . Upon completion of the Work, the Engineer shall compile for and deliver to the Owner a reproducible set of Record Documents conforming to the marked-up prints, drawings and other data furnished to the Engineer by the General Contractor. This set of Record Documents shall show the reported location of the Work and significant changes made during the construction process. Because these Record Documents are based on unverified information provided by other parties and assumed reliable, the Engineer cannot and does not warrant their accuracy. Not later than thirty (30) calendar days after Substantial Completion of the Project the General Contractor shall transmit to the Engineer redlined documents whose completion and accuracy have been a condition for approval of the General Contractor’s monthly payment application and the Engineer shall review for completeness, correct where necessary, and forward to the Owner, warranties, guarantees, submittals and the Record Drawings showing all changes in the Work and selections made during the construction process, based on Record Drawings received from the General Contractor including applicable addenda, clarifications, submittal information, and change orders that occurred during the Project. The Project Manual and all engineering calculations shall be provided to Owner in reproducible format at full size.
In addition, the Record Drawings, comprised of all engineering, structural, mechanical, electrical, landscape, civil, interior acoustic, and special system plans, reflected ceiling plans, exterior elevations, alternative energy analyses and life cycle cost analysis, if any, shall be provided by the Engineer to the Owner in a computer media “tif” and “dwg” format, including one full size hard copy set. Engineer’s obligation to provide the Record Drawings to Owner in the requested reproducible format shall be at Owner’s expense.
6. Post Construction Services.
Engineer shall provide the following Post Construction Services which shall be part of Engineer’s Basic Services:
a. CADD Drawings. Engineer shall organize CADD-generated as-built drawings based on records maintained and drawn by the General Contractor; and
b. Incorporate final changes to the As-Built drawing set as a result of its on-gong updating efforts to the Construction Documents as a result of Request for Interpretations/Information (RFIs).
III. ADDITIONAL SERVICES
IV. EXCLUDED SERVICES
Services designated in the Agreement or herein as Owner-provided are excluded from the Scope of Services.
ATTACHMENT 5-38
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 39 EXHIBIT B – DESIGNATED REPRESENTATIVES,
KEY PERSONNEL AND CONSULTANTS
I. BY ENGINEER
A. Engineer’s Designated Representative is: Jean Fares, P.E.
B. Engineer’s Key Personnel:
Michael Choi, PE, LEED AP Project Manager
C. Engineer’s Consultants:
Perry Cardoza, ASLA NUVIS, Landscape Architect
II. BY OWNER
A. Owner’s Project Manager is: David Kriske, Assistant CD Director
B. Owner’s Representative is: Patrick Prescott, Community Development Dir
C. Owner’s Additional Consultants are:
ATTACHMENT 5-39
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 40 EXHIBIT C – BASIC COMPENSATION, HOURLY RATES
AND REIMBURSABLE EXPENSES
FOR ENGINEER AND ITS CONSULTANTS
1. Basic Compensation.
For Basic Services, as described herein and in Exhibit A, Basic Compensation shall not exceed the amount of One Hundred Sixty-Eight Thousand, Eight Hundred Twenty Dollars ($168,820).
To the extent that the Basic Compensation includes any travel, hotel or other reimbursable expenses, such expenses shall be for actual and reasonable expenses incurred in the performance of the Scope of Services.
The Engineer and the Owner agree that the Engineer shall earn its compensation according to the following method:
Mixed Milestone and Time and Materials : The City shall pay for the services on a milestone basis, except that Tasks 1, 5, and 6 shall be paid on a time-and-material basis.
Engineer shall invoice the City for milestones completed and may invoice for partial completion of milestones based on the percentage of the milestone completed. Engineer shall invoice Tasks 1, 5, and 6 based on actual hours of work performed in accordance with this Agreement at the hourly rates specified in Section 5, below.
Schedule of Values/Tasks: The following estimated costs outline the complete breakdown of costs for each phase of the Project:
Additional Design Contingency: $22,020 (15 percent)
Total Cost of Services: $168,820
ATTACHMENT 5-40
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 41
2. Compensation for Additional Services.
For Additional Services of the Engineer and its Consultants, compensation shall be computed on the basis of a lump sum amount or on hourly rates and Reimbursable Expenses enumerated in this exhibit , subject to mutual agreement on a not-to-exceed amount for the Additional Services.
3. Progress Payments.
Progress payments shall be made monthly based upon the actual cost incurred to date for Services accepted by Owner, less the sum of previous payments paid. Engineer shall submit detailed statements to Owner on the first day of each month and Owner shall pay each approved invoice within thirty (30) calendar days after receipt and approval of the Engineer’s itemized statement. Statements shall refer to this Agreement by its Purchase Order indicated at the top of the first page hereof, shall display the original Cost of Services and shall include complete documentation of all charges. Authorized Reimbursable Expenses shall be indicated separately and shall be invoiced at their actual cost plus ten percent (10%) for Engineer’s services, processing and checking all such reimbursable expenses, together with original receipts or other documentation to substantiate expenditures. No mark-up is allowed on the Engineer’s in-house reimbursable expenses. Authorized Charges for Additional Services, if any, shall be indicated separately from charges for Basic Services. All statements shall be addressed to:
City of Burbank
Attention: ____________________
____________________
____________________
____________________
4. Final Payment.
Final Payment to the Engineer shall be made within sixty (60) calendar days after Engineer’s written demand provided Engineer has completed the Services described by the Agreement, and has delivered to Owner the updated Construction Documents, a Conditional Waiver and Release Upon Final Payment, a Declaration to Procure Payment and Release of Contract Rights, and any other Certificates and documentation reasonably required by Owner.
ATTACHMENT 5-41
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 42
5. Hourly Rates
A. Engineer’s hourly rates are as follows:
Professional Service Hourly Rate
Senior PM $250.00
PM $200.00
Project Engineer $175.00
Engineer / Support $150.00
Project Assistant $125.00
Engineer’s Hourly rates are inclusive of all profit, overhead, taxes, vacation, benefits and all other costs. The above listed Hourly Rates shall be used in the event the Engineer’s Scope of Services is modified. These Hourly Rates shall remain in effect throughout the Project’s duration.
B. If applicable, Engineer shall provide as an attachment herein to the Exhibit, hourly rates of all its Consultants to be employed on this Project for the City’s review and acceptance prior to the City’s execution of this Agreement.
6. Reimbursable Expenses.
Engineer shall not be entitled to reimbursable expenses for telephone, facsimile, internet and data processing costs, and mileage to and from Owner offices and construction site, and entertainment. Engineer shall obtain Owner’s prior written approval for reimbursement of:
1) expedited delivery charges not due to delay by Engineer; 2) extraordinary or out-of-town travel expenses;
3) document reproduction costs in excess of $250; and
4) any individual cost, fee or expense in excess of $500.
ATTACHMENT 5-42
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 43
EXHIBIT D
AMENDMENT NO. 1 TO AGREEMENT FOR ENGINEERING SERVICES
DATE: ________________
PARTIES: "OWNER"
THE CITY OF BURBANK, a municipal corporation
Designated Official: Name: ___________________________
Title: _____________________________
Telephone: ________________________
Mailing Address: 275 E. Olive Avenue
P. O. Box 6459
Burbank, CA 91510
"ENGINEER"
_________________________________________________________
Representative: Name: ________________________________
Title: _________________________________
Telephone: ____________________________
Mailing Address: _____________________________________
_____________________________________
TIME: Original Commencement Date: ________________________________ Original Completion Date: ________________________________ Amended Completion Date: ________________________________
COMPENSATION:
Original Cost of Service: $__________________________
Amendment to Cost of Service: $__________________________ Revised Cost of Service: $__________________________
THIS AMENDMENT TO THE AGREEMENT MUST BE EXECUTED BY THE ENGINEER
OR ITS REPRESENTATIVE AND THEN APPROVED AS TO FORM BY THE CITY
ATTORNEY BEFORE THIS AGREEMENT MAY BE EXECUTED ON BEHALF OF THE CITY OF BURBANK.
ATTACHMENT 5-43
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 44
1.0 Amendment and Ratification of Agreement. Owner and Engineer entered into a written agreement dated __________________________ for Engineer to provide _______________________________________________________________ (“Agreement”). Owner and Engineer desire to amend the Agreement in order to _____________________________________________________________________.
The following amendment is hereby made a part of the Agreement and shall be performed under the same terms and conditions as required by the Agreement. Except as modified herein, the Agreement shall remain in full force and effect and all of the terms of the original Agreement are hereby incorporated in this Amendment.
2.0 Additional Services. Engineer, as an independent contractor, agrees to perform during the term of the Agreement, each and every Additional Service set forth on the "Scope of Additional Services" attached hereto as Attachment A. The initiation of such Additional Service by the Engineer will commence upon receipt of a written notice from the Owner authorizing Engineer to proceed, and only to the extent of such authorization. The Additional Services of the Engineer shall include the making of all investigations, studies, and analysis required by the conditions involved in each request of the Owner.
3.0 Compensation. The Owner shall pay the Additional Services of Engineer on as indicated on the Schedule of Compensation set forth in Attachment B.
4.0 Ratification of Engineering Services Agreement. All other provisions of the Agreement dated ___________________, not inconsistent with this Amendment shall remain in full force and effect.
[SIGNATURES ON NEXT PAGE]
ATTACHMENT 5-44
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 45
"ENGINEER"
____________________________
Signature
____________________________
Name (please print)
____________________________
Title
"OWNER"
____________________________
Signature
____________________________
Name (please print)
____________________________
Title
If Engineer is a corporation or LLC, a
second signature is required:
___________________________
Signature
____________________________
Name (please print)
____________________________
Title
ATTEST: Approved as to Form
Office of the City Clerk Burbank City Attorney’s Office
_____________________________ By: ____________________________ Zizette Mullins, MMC, City Clerk Signature
____________________________
Name
____________________________
Title
ATTACHMENT 5-45
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 46
EXHIBIT E – TOTAL PROJECTED CONSTRUCTION COST
The cost information provided below represents the Total Projected Construction Cost allocated for the Project. This $2,200,000 amount shall encompass the Work of all off- site and on-site improvements, excluding construction work that is designated Not In Contract (NIC), the Project improvements generally described in the Agreement (see
and other design considerations described and requested in the original Request for Proposal.
The Engineer has the fiduciary obligation to design a facility that can be constructed within the maximum amount of $2,200,000
ATTACHMENT 5-46
K:\AGMT\ESA Kimley Horn San Fernando Bikeway Landscaping 47
EXHIBIT F – FUNDING SOURCE DOCUMENT
ATTACHMENT 5-47
ATTACHMENT 5-48
ATTACHMENT 5-49
ATTACHMENT 5-50
ATTACHMENT 5-51
ATTACHMENT 5-52
ATTACHMENT 5-53
State:
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
Printed Name: David Moore
Signature: ____________ _
Deputy Director for Planning & Modal
Programs
Date: ---------------
Local Agency:
CITY OF BURBANK
Printed Name: Patrick Prescott
Signature: (?��
Title: Community Development Director
Date: -------,f;<------,1-------=-/5;----r-l---=-d-_-3�-- • CITY OF BURBANK
ATTE TDATE· q,2b ·2- fJ2.,,3
Accounting Certification
For C<1ltrnns Use Only
Project ID PLBP-5200(052)
Advantage ID 0723000182
. Approved as to Form
. �a City Allol'M¥
By: �-·
Title: � =s,?fiif (if� �
Date: T\(f \ '2, '7 � ...
I l,ereby Certify upon my own person<1I knowledge th<1t budgeted funds me <1v<1il<1ble for encumbmnce.
Jennie Yee
Accounting Officer Printed
Nmlle
Revised April 2023
8/21/2023 $3,000,000.00
D<1te Amount Certified
November 1, 2023
ATTACHMENT 5-54
ATTACHMENT 5-55