Project Name/No.: Construction Management, Testing Contract No.: ______________ & Inspection for WA212 & WA214
Project Manager: PW/ M. Hindersinn Approved: ________________ 01225.0001/863604.2 (Long Form)
AGREEMENT FOR SERVICES
BETWEEN THE CITY OF CHINO AND
BUTIER ENGINEERING, INC.
THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 2nd day of April, 2024 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and Butier E ngineering, Inc. , a California Cor poration (“Consultant”). City and Consultant may be referred to individually as “Party” or collectively as “Parties.”
RECITALS
A. City has sought, by issuance of a Request for Proposals o r Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Consultant for per formance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mu tual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, compete nt, a nd professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, 01225.0001/863604.2 2
experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, th e phr ase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Scope of Services shall include the scope of work included in Consultant’s proposal, which shall be incorporated herein by this r eference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity hav ing jurisdiction in effect at the time service is rendered.
1.4 California Labor Law.
If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, as they pertain to such work, including the following requirements:
(a) DIR Monitoring a nd Enforcement. The public work and/or maintenance work performed under this Agreement shall be subject to compliance monitoring and enforcement by the Department of Industrial Relati ons (“DIR”). Consultant shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages . Consultant shall p ay prevailing wages to the exte nt required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wage s are on file at City Hall and will be made available to any interested pa rty on request. By initiating any work under this Agree ment, Consultant acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site where work is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages . Consultant shall comply with and be bound by the provisions of Labo r Code Sections 1774 and 1775 concern ing the payment of prevailing rates of wages to workers and the pe nalties for failure to pay prevailin g wages. The Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each 01225.0001/863604.2 3
calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor. (d) Payroll Records . Consultant shall comp ly with and be bound by the provisions of Labor Co de Section 1776, which require s Consultant and each subcontractor to:
keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Sectio n 1776; certi fy and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations T itle 8, Section 2 00 et seq. concerning the empl oyment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenti ceable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy o f the information submitted to any a pplicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit t o the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day . Consultant acknowledges that eight (8) hours labor constitutes a legal day's work. Consultant shall comply with and be bou nd by Labor Code Section 1810.
(g) Penalties for Excess Hours . Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to the City, forf eit twenty-five dollars ($25) for ea ch worker employed in the perf ormance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of t he provisions of Division 2, Pa rt 7, Chapter 1, Article 3 of the Labor Code.
Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensatio n for all hours worked in exce ss of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700 provide that every employer wil l be required to secure the payment of compensation to its employees if it has employees. By exec uting this Agreement, and in accordance with the provisions of California Labor Code Section 1861, Consultant certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor C ode which require every employer to be insured against l iability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work o f this contract.”
01225.0001/863604.2 4
(i) Consultant’s Responsibility for Subcontractors. For every subcontractor who will perform work und er this Agreement, Consultant shall be respons ible for such subcontractor's compliance with Division 2, Part 7, Chapte r 1 (comme ncing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any sub contractor for work under this Agreement. Consultant shall be required to take all actions necessary to enfo rce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll re cords of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her work ers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.5 Licenses, Permits, Fees and Assessments.
Consultant shall obtain a t its sole cost and expense such lic enses, permits and approvals as may be required by law for the performance of the services required by this Agreement.
Consultant shall have the sole obli gation to pay for an y fees, assessments and tax es, plus applicable penalties and interest, which may b e imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, an d shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.6 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered th e scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties an d restrictions attending p erformance of the services under this Agreement. If the services i nvolve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existin g, prior to commencement o f services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Project Manager.
1.7 Software and Computer Services.
If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer t echnology, Consultant repr esents and warrants that it has inspected the City’s current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant unde r this Agreement is compat ible, and shall be fully functional, with such infrastructure, equipment, computer system and software of the City. Consultant acknowledges that the City is relying on the representation by Consultant as a material consideration in entering into this Agreement.
1.8 Care of Work.
01225.0001/863604.2 5
The Consultant shall a dopt reasonable met hods during the life of the Agreemen t to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other com ponents thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until accep tance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.9 Further Responsibilities of Parties.
Both parties agre e to use reasonable care and diligence to perfo rm their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonab ly necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.10 Additional Services.
City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Project Manager to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written app roval of the Consultant. Any increase in compen sation for extra wo rk sh all require the approval of Cit y Council unless the City Council has previously authorized the City Manager to approve an increase in compensation and the amount of the increase does no t exceed such authorization. It is expressly understood by Consultant that the provisions of this Sect ion shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided purs uant to the Scope of Servic es may be more cost ly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute di scretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
1.11 Special Requirements.
Additional terms and condition s of this Agreement, if an y, which are made a part hereof are set forth i n the “Special Requ irements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compe nsation” attached hereto a s Exhibit “C” and 01225.0001/863604.2 6
incorporated herein by this r eference. The total compensation, including reimburseme nt for actual expenses, shall not exceed Two Million One Hundred Seventy -Two Thousand Three Hundred Fifty -Eight Dollars and Zero C ents ($2,172,358.00) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retentio n; (iii) payment for time and materials based upon the Consultant’s rat es as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub ta sks, (b) contract retention is main tained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensati on. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City .
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expen ses incurred during the preceding m onth in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement . Consultant shall not invoice City for any duplicate services performed by more than one person.
All invoices shall be submitted by email to [email protected]. Each invoice is to include:
(a) Line items for all personnel describing the work perf ormed, the number of hours worked, and the hourly rate.
(b) Line items for all materials and equipment properly charged to the Services.
(c) Line items for all oth er approved reimbursable expenses claimed, with supporting documentation.
(d) Line items for all approved subcontract or labor, s upplies, equipment, materials, and travel properly charged to the Services. 01225.0001/863604.2 7
(e) If this Agre ement requires prevailing wages, per Section 1.4 of the Agreement, all invoices shall include a copy of Consultant’s Certified Payroll and proof that Certified Payr oll has been submitted to the DIR.
Consultant shall also submit a list of the prevailing wa ge ra tes for all employees and subcontractors providing services under this Agreement, as applicable, with Consultant’s first invoice. If these rates cha nge at any time during the term of th e Agreement, Consultant shall submit a new list of rates to the Ci ty with its first invoice following the effective date of the rate change.
City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty -five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, th e City cannot guarantee that paymen t will occur within this t ime period . In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consul tant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
2.6 Contingency of Funds.
Consultant acknowledges that funding or portions of funding for this Agreem ent may be contingent upon State bud get approval; receipt of funds from, and/or obligation of funds by the State of California to City; or inclusion of s ufficient funding for the services he reunder in the budget approved by Chino City Council for each fisc al year covered by this Agreement. If such approval, funding or appropriations are not forthcoming, or are otherwise limited, Ci ty may immediately terminate or modify this Agreement without penalty.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall pe rform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this 01225.0001/863604.2 8
reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unu sually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots , str ikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the comm encement of such delay not ify the Project Manager in writing of the causes of the delay. The Project Manager shall ascertain the facts and the extent of delay, and extend the time for performing the services for the perio d of the enforced delay when and if in the judgment of the Project Manager such delay is justified. The Project Manager ’s determination shall be final and conclusi ve upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City f or any dela y in the performance of this Agreement, however caused, Consultant’s sole remedy being exten sion of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in ful l force and effect until c ompletion of the services , which shall be no later than June 30, 2025, except as otherwise provided i n the Schedule of Performance ( Exhibit “D”).
This Agreement may be renewed by a written amendment for up to an additional Two (2) One (1) year terms at the optio n of the City if the City is satisfied with the quality of service s performed by Consultant under this Agreement.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. 01225.0001/863604.2 9
Therefore, the foregoin g principals shall be resp onsible during the term of this Agreement for directing all activi ties of Consultant and devoting suff icient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized age nts, shall at all times be under the exclus ive direction and contro l of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the s ervices required under t his Agreement.
Consultant shall notify Cit y of any changes in Consultant’s sta ff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manne r, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any ma nner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to r etirement, health care or any other benefits which may otherwise accrue to City ’s employees. Consultant expressly waives any cla im Consultant may have to any such rights.
4.3 Project Manager.
The Project Manager shall be Michele Hindersinn, PE, City of Chino Principal Engineer or any ot her person as may be designated by the Project Manager . It shall be the Consultant’s responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager . The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents o r employees, perform the services required herein, except as otherwise set forth her ein. City shall have no voice in the selecti on, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contract or of City an d shall remain at all time s as to City a wholly independent contractor with only such obliga tions as are consistent with that ro le. Consultant shall not at any time or in any manner represent that it or any of it s agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed 01225.0001/863604.2 10
to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledg e, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole o r in part the services required hereunder without the express written approval of the City. In ad dition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, w hether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder sha ll include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unap proved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting Consultant’s indemnification of City, and prio r to commencement of any services under this Agreement, Consultant sha ll obtain, provide and maintain at its own expense during the term of t his Agreement, policie s of insu rance of the type and amounts described below and in a form satisfactory to City.
(a) General liability insurance . Consultant s hall maintain commercial g eneral liability insurance with coverage at least as broad as Insu rance Services Office form CG 00 01, in an amount not less than $ 1,000,000 per occurrence, $ 2,000,000 general aggregate, for bodily injury, personal injury, and pro perty damage. The policy m ust include contractual liability that has not been amended. Any e ndorsement restricting stan dard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance . Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed unde r this Agreement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance . Consultant shall maintain professional liability insurance that covers t he Services to be performe d in connection with this Agreement, in the minimum amount of $1,0 00,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before th e effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement. 01225.0001/863604.2 11
(d) Workers’ compensation insurance . Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall includ e all subcontractors as insureds under its policies or shall furnish separate certif icates and certified endorsements for each subcontractor. All coverage s for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance . Co nsultant shall provide certificates of insurance to City as eviden ce of the insurance coverage require d herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certificat ion of insurance shall be k ept on fi le with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of al l required insurance polic ies, at any time.
(b) Duration of coverage . Consultant shall proc ure a nd maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection w ith the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants. (c) Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herei n may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provisio n that such coverage shall also apply on a primary and non - contributory basis for the benefi t of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specification s or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and an y premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by an insurance company currently aut horized by the Insurance C ommissioner to transact business of insurance or that is on the Li st of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise ap proved by the City’s Risk Manager.
01225.0001/863604.2 12
(f) Waiver of subrogation . All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive su brogation against City, it s elected or appointed officers, agents, officials, employees and volunteers or shall specifically all ow Consultant or others providing insurance evidence in compliance with these specif ications to waive their right of recovery pr ior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(g) Enforcement of contract p rovisions (non -estoppel). Consultant acknowledges and agrees that an y actual or alleged failure on the part of the City to inform Consultant of non -compliance with any re quirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting . Requirements of specific co verage features or limits contained in this section are not intend ed as a limitation on cover age, limi ts or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not in tended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If t he Consultant maintains higher limits than t he minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Co nsultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of cancel lation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10 ) day notice is required) or nonrenewal of c overage for each required coverage.
(j) Additional insured status . General liability policie s sha ll provide or be endorsed to pr ovide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such polic ies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition o f undisclosed coverage limitati ons. None of the coverages required herein will be in compliance with these requirem ents if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom clai m is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause . Consult ant agrees to ensure that its subconsultants , subcontractors, and any other party involved with the project who is brought onto or invol ved in the project by Consu ltant, pr ovide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all s uch coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements 01225.0001/863604.2 13
of t his section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications . The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Con sultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions . Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims . Consultant sha ll give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve c overage under any of the required liability policies.
(q) Additional i nsurance. Consultant shall also procure and maintain, at its own c ost a nd expense, any additi onal kind s of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
5.3 Indemnification.
To the full extent perm itted by law, Consultant agrees to indemnify , defend and hold harmless the City, its officers, employe es and agents ( “Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or pro perty, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, fi rm or entity arising out of or in connection with the negligent pe rformance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or w illful mi sconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, coven ant or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connectio n with any of said claims or liabilities and will pay all costs and expenses, includ ing legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activ ities of Consultant hereunder; and Consultant agrees to save and h old the City, its officers, agents, and employees harmless therefrom;
01225.0001/863604.2 14
(c) In the event the City, its officers, agents or emp loyees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to th e City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorn eys’ fees.
Consultant shall incorporate simi lar indemnity agreements w ith its subcontra ctors and if it fails to do so Consultant shall be fully responsible to inde mnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error o r omission, or reckless or willful m isconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to cl aims or liabilities occurr ing as a result of City ’s sole negligence or willful acts or omiss ions, but, to the fullest e xtent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligenc e, recklessness or willful misconduc t of the design professional . The indemnity obligation shall be binding on successor s and assigns of Consultant and shall survive termination of this Agreement.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and requ ire subco ntractors to keep, such ledgers , books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents rel ating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Project Manager to ev aluate the performance of such services. Any and all such documents sh all be maintained in accordance with generally accepted accounting principles and shall be co mplete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business ho urs of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services h ereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the b ooks and records may be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall pe riodically prepare and sub mit to the Project Manager such reports concerning the performance of the services required b y this Ag reement as the Project Manager shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant 01225.0001/863604.2 15
agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially i ncrease or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decrease d cost related thereto and , if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, d ata, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement , and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by Ci ty of its full rights of ownership use, reus e, or assignment of the do cuments and materials hereunder. Any use, reuse or assignment of s uch c ompleted documents for other pr ojects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole r isk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, re use or assign ment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodi ed therein.
All subcontractors shall provide for assignment to City of any documents or mate rials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for h ire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose an y such information or work product to persons or entities other than City without prior writ ten authorization from the Project Manager.
(b) Consultant, its officers, employees, agents or subcontractors, shall no t, without prior written authorization from the Project Manager or unl ess requested by the City Attorney, voluntarily provide documents, declarations, letters of s upport, t estimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or w ork product in violation o f this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. 01225.0001/863604.2 16
(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontract ors be served with any summons, comp laint, subpoena, notice of deposition, request for documents, interrogatories, reque st for admiss ions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement s hall be interpreted, constr ued and g overned both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute , claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit t o the personal jurisdiction of such court in the event of such act ion. In the event of litiga tion in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work perf ormed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of t he Consultant’s default sh all not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising o ut of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or whi ch are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third par ties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear 01225.0001/863604.2 17
to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obli gations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any par ty to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of an y provision of this Agreement.
Acceptance by City of any work or s ervices by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non -defaulting party on any d efault shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies ex pressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exerci se by either party of one or more of such ri ghts or remedies shall not preclude the exercise by it, at the same or different times, of a ny other rights or remedies for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent wit h the purposes of this Agr eement. Notwithstanding any contrary provision herein, Consultant shall file a statutory clai m pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Since the determin ation of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and sh all pay to the City the sum of Zero Dollars and Zero Cents ($0.00) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for term ination for cause. The City reserves the right to term inate this 01225.0001/863604.2 18
Contract at any time, with or without cau se, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Project Manager . In addition, the Consultant reserves the right to ter minate this Contract at any time, wi th or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Project Manager. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Project Manager thereafter in accordance with the Schedule of Compensation or such as may be approved by the Project Manager, ex cept as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable val ue of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the term inating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for comp letion of the services required here under exceeds the compensation herein stipulated (provided that the City shall use reasonable effort s to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to a ny action or proceeding in any way connected with this Agreement, the prevaili ng party in su ch action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonab le attorney’s fees. Attorney’s fees shall include atto rney’s fees on any appeal, and in addition a party e ntitled to attorney’s fees shall be entitled to al l other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally l iable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
01225.0001/863604.2 19
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any w ay hinder Consultant’s performance of services und er this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest sh all be employed by it as a n officer, employee, agent or sub contractor without the express wr itten consent of the Project Manager . Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts o f interest with the interest s of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision r elating to the Agreement which affects her/his financial interest or the financial interest of any corporatio n, partnership or association in which (s)he is, d irectly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under o r through them, that there shall be no discrimination against or segregation o f, any person or gr oup of persons on account of ra ce, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that e mployees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national ori gin, ancestry or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in co nnection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized alien s for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed agains t City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, de mand, request, document, consent, approval, or commu nication eithe r party desires or is required to gi ve to the other party or any other person shall be in writing and either served personally or sent by prepaid, first -class mail, in the case of the City, to the City 01225.0001/863604.2 20
Manager and to the attention of the Project Manager (with her/his name and City title), City of Chino, 13220 Central Avenue, Chino, California 91710 and in the case of the Consultant, to the person(s) at the address de signated on the execution page of this Agreement. Either party may change its address by not ifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy -two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation.
The terms of this Agreement shall be construed in acc ordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments heret o is the entir e, co mplete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting th is Agreement and this Agre ement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid u nless made in writing and approved by the Consultant and by the Ci ty Co uncil. The parties agree that t his requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the eve nt that any one or more of the phrases, sentences, clauses, paragraphs, or sections containe d in this Agreement shall be declare d invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceabili ty shall not affect any of the remaining phrases, sentences, clauses, paragrap hs, or section s of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unl ess the invalid provision is so material that its inva lidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of C ity participat e in any decision relating to this A greement which may affect his/her financial interest or the financial interest of any corporation, p artnership, or association i n which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s) he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of 01225.0001/863604.2 21
“financial interest” shall be consistent with State law and shall not include i nterests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5 . Consultant warrants and represents that it has no t paid or given, and will no t pay or give, to any thir d party including, but not limited to, any City offi cial, officer, or employee, any money, considerati on, or other thing of value as a result or consequence of obtaining or being awarded any agreement.
Consultant further warrants and represents that (s)he/ it has not engaged in any act(s), omission(s), or ot her conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not l imited to, any City official, officer, or employee, as a result of consequence of obtaining or being award ed any agreement. Consultant is aware of and under stands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of v alue will render this Agreement void and of no force or effect.
Consultant’s Authorized Initials _______
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is du ly organized and existing, ( ii) they are duly authoriz ed to execute and deliver this Agreement on behalf o f said party, (iii) by so executing this Agreement , such party is formally bound to the provisions of this Agreement, and (iv) th at entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]
01225.0001/863604.2 22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF CHINO, a municipal corporation
Linda Reich, City Manager
ATTEST:
Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
_____________________________ _____________________________
Fred Galante, City Attorney Hye Jin Lee, PE, Director of Public Works
CONSULTANT:
BUTIER ENGINEERING, INC.
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman o f the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer.
01225.0001/863604.2 A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the Services described in Consultant’s Proposal, attached hereto as Exhibit A-1.
II. All wor k pr oduct is subject to review and acceptance by the City and must be revised by the Consultant without additional charge to the City unti l found satisfactory and accepted by City.
01225.0001/863604.2 A1-1
EXHIBIT “A-1”
Pre-Construction / Project Control Services
1. Field Office Mobilization and Equipment
The CM/RE and Field Engineer will coordinate and oversee the setup, occupancy, and use of a field office prior to mobilization and during the post construction phase. Butier will provide all office furnishings and equipment including conference room table and chairs with minimum seating for 10 people.
2. Familiarity with the Work & Project Site
During the pre -construction phase, the Butier Team will perform a thorough review of the contract documents and evaluate current data and relevant reports as necessary. They will meet with the City, Hazen and Sawyer, and Contractor and become familiar with the contracting plan and Contractor interface and coordination requirements. The CM/RE and Field Inspection personnel will conduct field visits to the project areas and well sites and will review City - provided maps of the pipeline networks and available record drawings to become familiar with the groundwater wells and its relevant distribution systems.
3. Preconstruction Site Survey
The Butier Team will perform a thorough preconstruction site survey to depict the pre -existing conditions. The survey will include digital photographs and videos of the exterior of all structures and plant species located within 100 feet of the construction limits and near haul and access roads.
4. Contractor’s Preconstruction Video
The CM/RE will coordinate and review the construction contractor’s videotape of preconstruction site conditions prior to beginning construction operations to confirm existing conditions within the limits of work, in adjacent areas and along access and haul roads. Compare Contractor’s preconstruction survey to the surveys performed, note any discrepancies, and resolve issues.
5. Full and Responsible Charge of Project
The CM/RE will take full and responsible charge immediately following the NTP of the construction contract. He will assist the City in obtaining Contractor documentation. The Butier Team will evaluate the adequacy of the Contractor’s personnel, equipment, and methods; review the Contractor’s baseline schedule and schedule of values for compliance; and monitor and document the progress of the work.
6. Master Submittal List
The CM/RE will review the list of submittals supplied by Hazen and Sawyer and prepare a complete list of the required Contractor items. The CM/RE will provide the Master Submittal List to the Contractor at the preconstruction meeting and will distribute the schedule of submittals to the City within 10 days after recommended approval of the Contractor’s submittal.
7. Preconstruction Meetings
The Butier Team will schedule and facilitate a pre -construction meeting with the Contractor, City staff, Hazen and Sawyer, permitting agency representatives, and other key stakeholders. The project team will outline contract administration guidelines, contractual roles and responsibilities, project objectives, schedule of values, submittal items, correspondence, utility relocations, permit requirements, RFIs, progress payments, change orders, and safety. Meetings minutes will be distributed to attendees.
8. Monthly Project Invoicing
The CM/RE will provide monthly invoices with a breakdown of costs for each project in a form acceptable to the City that identify each person’s labor hours, billing rate, supporting detailed invoices for direct and subconsultant costs, detailed cost breakdowns, and written certification by 01225.0001/863604.2 A1-2
the CM/RE that all charges are in conformance with the terms of the professional services contract. Written certification will be in sufficient detail to justify charges.
9. Safety Program
The CM/RE will assist the City with review of the Contractor’s safety manager’s resume and the work site specific safety and health program. He will cooperate with the Contractor’s safety program and provide Butier personnel with safety equipment that conforms to safety programs while on the job site.
10. Site Coordination
The CM/RE and Lead QA Inspector will review and train Butier field personnel on site access, traffic control, and other site coordination issues. They will coordinate with other contractors and others working on or near the project site.
11. Environmental Training
The CM/RE and Ninyo & Moore’s QSP manager will review and train field personnel on environmental requirements of the project and coordinate training with City staff.
Correspondence & Reports
The CM/RE and Field Engineer will prepare project correspondence and other forms of communication in accordance with City document standards. Project related telephone conversations will be committed to writing. E -mail communications will be saved within the document control system. E -mail communication to the construction contractors will be limited to non-directive, non-decision-making issues.
Meetings and Notice Procedures
The CM/RE and Field Engineer will establish meeting schedules, notices, agendas, minutes taking, distribution procedures, reporting procedures, documentation requirements, and timely acceptance processes in accordance with City standard practices.
1. Weekly Construction Progress Meetings
The CM/RE will facilitate weekly progress meetings with the City and the Contractor. The Field Engineer will prepare and distribute an agenda and meeting minutes utilizing templates approved by the City. Each meeting will discuss the schedule, near -term activities, change orders, submittals and RFIs, site safety, job problems, and actions requiring clarification of design intent, ambiguities in contract documents, and other key issues. Action monitoring will be implemented to ensure compliance and timely response by all parties.
2. Monthly Project Report Meeting
The CM/RE will meet with the City to discuss the monthly project report. The Field Engineer will document the meetings and action items will be identified for the City.
3. Consultant Team Coordination & Other Meetings
The CM/RE will schedule and facilitate weekly CM coordination meetings to resolve issues relating to the management of the project. The Field Engineer will document the meetings and record action items assigned to CM team members, which may include the City and Butier staff.
Shop Drawings and Submittal Reviews
1. Master Submittal List
The Butier Team will be responsible for coordinating the submittals with the project’s Master Submittal List, reviewing the Master Submittal List with the Contractor, and developing a schedule for the delivery of the submittal items. This will ensure that submittals are delivered on time and there are no delays in construction.
2. Submittal Reviews / Submittal Log & Status
The Butier Team will log, track, and monitor shop drawings, calculations, data samples, submittals, and manuals from the Contractor. Submittal tracking will be introduced into Procore and status of submittals will be known at all times. The CM/ RE will review the completeness 01225.0001/863604.2 A1-3
and quantity of all submittals received during the construction phase and transmit to City staffing for review and approval.
The CM/RE will coordinate required reviews of submittals with Hazen and Sawyer, City staff, and other appropriate stakeholders. The City’s Program Manager will have access to all reviewed submittals through Procore.
3. Schedule Reviews
The Senior Scheduler will evaluate and monitor the Contractors’ Baseline Schedules, weekly look-ahead schedules, monthly schedule updates, Time Impact Analyses, schedule revisions, and as-built schedule submittals. The Senior Scheduler will update the overall project schedules to reflect actual progress and changes. Slippage of any contract activities on the critical path will be identified early so that the Team may take corrective action.
4. Field Copies and Originals
The Field Engineer will notify the City’s Program Manager of all reviewed and stamped submittals via e-mails, provide access to the City’s Program Manager to all reviewed submittals through Procore, and maintain a field office set of submittals.
Plan and Specification Interpretation/Control
1. Inspection of the Work
Butier’s Lead QA Inspector will ensure that the Contractor’s work complies with the contract documents, industry standards, codes, environmental and local regulations, and permits.
2. Requests for Information
The CM/RE will coordinate the Requests for Information log and review and respond to Contractor RFIs. Make every effort to review and provide appropriate response to RFIs prior to involving the Design Engineer. Distribute RFIs to appropriate staff and coordinate timely response. Review answers and prepare formal response to Contractor within five calendar days of receipt of response.
3. Requests for Changes in Design
The CM/RE will review and respond to Contractor requests for design revisions. Responses will require prior written approval from the City and Hazen and Sawyer. If revisions in design take the form of value engineering, the Butier Team will research, evaluate, and provide recommendation.
4. Value Engineering Proposals
The CM/RE will assist in evaluating value engineering proposals submitted by the Contractor.
5. Record Drawings and Specifications
The CM/RE will provide the City with a set of record drawings and specifications with redline markups by the Contractor that accurately illustrate constructed facilities at the end of construction. He will review the Contractor’s record drawings monthly to ensure timely recording; ensure the City’s record drawings identify RFIs, shop drawing revisions, change order modifications, etc. and that they are updated weekly; and will coordinate the submittal of completed record drawings to the City’ s Program Manager. In addition, the CM/ RE will hold monthly record drawing review meetings with the City’s Program Manager and the Contractor prior to submittal of monthly progress payments. Butier will utilize Bluebeam.
CM Administration & Staffing
1. Daily Management
The CM/RE will be responsible for overseeing, performing, and coordinating all construction management daily activities. He will be supported by Butier’s Lead QA Inspector, Field Engineer, and QA/QC Team, and team member firms ON -SITE Technical Services, Ninyo & Moore, and Hillwig-Goodrow. The Butier Team will provide pre -construction, construction, and post-construction phase services as outlined in the RFP.
2. Resolution of Day-to-Day Construction Issues
The CM/RE will lead resolution of day -to-day construction issues and will coordinate with the 01225.0001/863604.2 A1-4
City, Hazen and Sawyer, and Contractor(s) on technical issues and concerns, as well as interpretation of the design documents. The CM/RE will interface with Hazen and Sawyer for resolution of technical issues, processing of change order requests or design changes to accommodate actual field conditions encountered.
Environmental Control
1. Project Management and Coordination
Butier has selected Ninyo & Moore to provide environmental control services. They will perform the following services and coordinate activities with Butier’s CM/RE, the City, and the Contractors over the duration of the projects:
• Ensure the Contractors comply with environmental permitting, including NPDES and General Permit for Storm Water Discharges Associated with Construction Activity. • Provide project information to the City’s environmental support Consultant for SWPPP preparation.
• Refer environmental/permitting issues immediately to the CM/RE and the City and assist the City and its Consultants with resolution of these issues as needed.
2. Compliance and Mitigation
Ninyo & Moore will provide QSP certified personnel for monitoring of compliance by Contractors with the General Permit. These activities are described below. • Provide support for obtaining required permits or variances from the County of Riverside or San Bernardino. • Weekly inspections will include photographs of best management practices (BMPs), recommendations for additional BMPs, or necessary maintenance of BMPs. • Estimate QSP site visits will be needed no more than once a week for the duration of the projects assumed to be 18 months for WA212 and 12 months for WA214. • The QSP will conduct pre -storm, extended storm, post -storm, and stored storm water inspections during qualifying rain events. A total of nine rain events for WA212 and six rain events are assumed for WA214.
• Effluent sampling of discharges may be required during rain events. Based on the results, necessary evaluations, modifications, and notifications will be made to the City.
3. Environmental Training
Attend environmental training sessions at the project site. Coordinate attendance of on -site personnel for the pre-construction and subsequent environmental training program. Coordinate environmental training attendance of the Contractors’ new workers.
Progress Payments & Cost Monitoring
1. Labor Compliance
Butier’s CM/RE will ensure conformance with federal and state grant requirements.
Responsibilities will include ensuring that the Contractors submit the proper documentation, proper fringes are paid in accordance with the breakdown, and the required wages are being paid according to grant requirements. LCP Tracker or an equivalent software will be utilized to perform Labor Compliance tasks.
2. Monthly Review
Butier will review and track the Contractor’s payment requests and other project -related invoices monthly. The progress payment worksheet will be based on an approved schedule of values and validated by daily inspection reports. Pay requests will be checked against actual in -place quantities verified at the end of the pay period.
Change Order & Claims Management
1. Change Order Management
The CM/RE will communicate effectively with the Contractor to mitigate any potential 01225.0001/863604.2 A1-5
cost/schedule impacts. We strive to minimize impacts by providing proactive alternatives to construction sequencing, constructability issues, approach, or value engineering. We keep the best interests of the Owner in the forefront of our approach. The CM/RE will constantly monitor and advise on potential risks and provide alternative approaches.
2. Claims Management
The Butier Team will review Contractor claims and claims for damages by private parties.
They will review documentation and compile records for evaluation. The CM/RE will prepare a written acknowledgement of receipt of the claim. This correspondence clarifies the status of the request for all parties to minimize misunderstandings. To supplement the technical and contractual evaluation of the claim, the CM/RE will work closely with City staff to assess the risk of exposure and to determine an appropriate response to the claim.
Construction Management Reports
1. Monthly Project Reporting
Butier can tailor monthly reports to any project based on the scope of work and need. The CM /RE will prepare monthly written status reports and submit to the City by the 5th of each month. The report will summarize the prior month’s major accomplishments and current construction activities to justify the invoice.
O&M Manuals and Warranty Expiration
1. Compile and Submit O&M Manuals
The CM/RE will compile and submit operation and maintenance manuals, instruction manuals, parts lists, spare parts, and warranties for equipment procured. The CM/RE will collect relevant data and information from the Contractor and material/equipment supplies and assist the Design Engineer in developing a comprehensive O&M Manual.
2. Major Equipment Warranty Expiration Record
The CM/RE will prepare a spreadsheet for major equipment, such as pump, valve and motorized valve operator, etc., that will include Product Name, Manufacturer, Serial Numbers, Warranty Period, and Warranty Expiration Date. The electronic spreadsheet will be provided to the City’s Program Manager.
Startup, Closeout and Acceptance
1. Pre-Operational Testing Plan
Butier’s CM/RE and ON -SITE-Technical Services will review and comment on the Contractor- provided pre -operational testing plan and obtain written approval from the City. They will coordinate the testing of the equipment and facilities with the City, and assist City personnel during the startup phase, including all pressure testing and disinfection.
2. Punch List
The Butier Team will prepare detailed project punch lists at substantial completion. Upon correction, they will conduct a final walk-through prior to the acceptance of work with the City, and other parties, and provide certification of the Contractor’s compliance on work items requested by the City. The Team will verify that work, testing, cleanup, and Contractor demobilization are complete.
3. Operator Training
Coordinate operator training in the use of any specialty equipment and of the facilities. Schedule training with City staff and other parties 30 calendar days in advance of startup of the facilities or equipment.
4. Electrical and Instrumentation Startup
Butier and ON -SITE Technical Services personnel will coordinate the installation, inspection, and testing of all electrical and instrumentation equipment with the City and other parties. They will confirm the Contractor’s performance of electrical/instrumentation system checks to ensure 01225.0001/863604.2 A1-6
system follows requirements of the contract documents. Coordinate electrical system equipment startup and training with the Contractor and supplier representatives.
5. Final Walk-Through
The CM/RE will schedule, coordinate, and conduct a pre -final walk-through and project review prior to the acceptance of work with the City and other staff as directed by the City’s Program Manager. Submit electronic copies of a report to document the walk-through and project review.
Butier adds items to the punch list in Procore as the project progresses to ensure nothing is missed. If it is addressed, we take it off. Upon correction of deficiencies by the Contractor, the Lead QA Inspector will schedule, coordinate, and conduct a final walkthrough prior to the acceptance of work.
6. Final Change Orders
The Butier Team will prepare final change orders as required. Classify and summarize the change orders and include in the Final Construction Summary Report.
7. Certify Compliance
Provide certification of Contractor compliance on work items specifically requested by the City and verify that all work, testing, cleanup, and demobilization are complete.
8. Recommend Acceptance
The CM/RE will provide a letter to the City Program Manager recommending acceptance of the project and the Notice of Completion and submit to the City Program Manager for review 45 days prior to Board action.
9. Closing Out Contracts
The CM/RE will take the lead in negotiating and closing out the construction contract. The CM/RE will prepare the memorandum to the Board recommending acceptance of the project and the Notice of Completion.
Post Construction
1. Internal Notice of Completion
The CM/RE will prepare an Internal Notice of Completion to the City Program Manager.
2. O&M Materials
The Butier Team will deliver the following to the City Program Manager: O&M Manuals; the City approved Major Equipment Warranty Expiration Record spreadsheet; and spare parts, equipment, and maintenance materials upon Board acceptance.
3. Demobilization of Field Offices
The Butier Team will remove all furnished materials and furniture at the end of the construction contract. Provide local office facilities to perform administrative project close out duties once the field offices have been demobilized, including preparation of final record drawings.
4. Final Payment
The CM/RE will track stop notices until releases are obtained from all outstanding stop notices.
Recommend final payment in the form of release of retention to the Contractor in accordance with contract requirements. Verify that the Contractor has made all payments to the subcontractors and vendors and that any stop notices or liens have been released. Verify final documentation has been received and obtain a Conditional Waiver of Lien from the Contractor prior to recommending final payment.
5. Final Construction Summary Report
The CM/RE will prepare a final construction summary report and submit no later than 60 calendar days following the Notice of Completion or resolution of outstanding construction issues. The report will include the project history and overview of the contracts; agreements made by the City; issues encountered/resolutions; summary of major changes; project costs and cash flows; analysis of schedule performance; progress photographs and videos; lessons learned. 01225.0001/863604.2 A1-7
Final Documentation Delivery
1. Paper & Electronic Files
The CM/RE will furnish project documents and final reports to the City 60 calendar days following the Notice of Completion. All original documents will be delivered to Program Manager with documents labeled with City file numbers. All project electronic files in Procore and related program files will be provided to the City’s Program Manager on external hard drives (2 copies) labeled with the project name.
2. Final Record Drawings
Butier will maintain a comprehensive and accurate set of as-built drawings throughout construction. At the conclusion of the project, we will consolidate all changes into a single red line utilizing Bluebeam software and submit to Hazen and Sawyer. Butier’s PM will coordinate the submittal of completed as-built drawings to the City’s Program Manager.
Quality Assurance Inspection Services
1. Inspection of the Work
Butier will provide full time technical inspection to ensure that materials and workmanship follow the contract documents. Butier’s experienced inspection staff can provide nearly all the necessary special inspection support . ON -SITE Technical Services will perform mechanical, startup, and in-plant inspection services. Field Inspectors will coordinate delivery, inspect for defects or missing parts, and oversee recording the receipt and storage of equipment. They will inspect construction activities according to the work schedule identified in the contract documents.
2. Daily Reports
The Lead QA Inspector will prepare daily reports of the construction activities, including weather conditions, underground conditions, contractor’s equipment and manpower, work performed, materials used, site visitors, delays in work, and deficiencies. Daily reports will be filed in the project files within 24 hours of the report date.
3. Progress and Other Photos
The Lead QA Inspector will provide weekly photographic/ digital records during construction.
Log construction digital photographs daily. A digital photographic library will be maintained of significant construction activities. The photographs will be labeled with the date, location, and narrative information. Additional digital photographs will be taken of change order and claim items and any special or unique conditions as they arise . The photographs will be accessible to the City Program Manager via Procore.
4. Progress and Other Videos
The Lead QA Inspector will take and maintain video documentation of the progress of the work on the entire project including adjacent areas . He will label video spine and video cover with project name, specification number, description of video content, and date range.
5. Revisions to Contractor’s Methods
Field Inspectors will discuss appropriate revisions to the methods and procedures used in performing the work; however, they will not authorize extra work or approve of work that deviates from the contract documents.
6. Deviations in the Work
The Lead QA Inspector will prepare daily reports of deviations and non -conformance to specifications and provide responses in accordance with the specification requirements. He will advise the Contractor of deviations, document, record deviations that are not corrected, and deliver a Notice of Noncompliance to the Contractor. Perform necessary follow -up to resolve Notices of Non-Compliance.
7. Facility and Pipeline Shutdowns
01225.0001/863604.2 A1-8
The project includes several tie -ins to existing facilities. It is essential that shutdowns are planned in advance, scheduled, and executed to minimize disruption. The CM/RE will review the Contractor’s schedule to ensure proper notice is given to the City for shutdowns and any other work that may interfere with operations. The Lead QA Inspector will coordinate lockout / tagout procedures with City staff and the Contractor.
Geotechnical Engineering, Material Testing, and On -Site Sampling of Materials
Butier has selected Ninyo & Moore to perform the following services for geotechnical engineering, material testing, and on-site sampling of materials:
• Project coordination, management, and technical support including review of project geotechnical reports, plans and specs, work scheduling and distribution of test data. • Review and process submittals for materials, aggregate, concrete, and geotechnical and construction materials.
• Field Project Engineer/Geologist services observe remedial excavation bottoms and foundation excavations. Supplemental written recommendations can be provided. • Field Technician services to provide observation, sampling and testing during site grading, building pad preparation, trench backfill, subgrade preparation, aggregate base placement and during asphalt concrete pavement operations.
• Field ACI Technician to provide observation, sampling and testing during concrete and grout placement including checking mix design, elapsed time, temperature, slump and casting a set of cylinders for each batch.
• Field Technician (with equipment) services for load and/or torque testing of post installed anchors and stone veneer.
• Laboratory testing including proctor density of soil, sieve analysis, sand equivalent, Hveem stability and unit weight, AC extraction including gradation, and compressive strength testing of masonry grout and mortar, and concrete samples obtained in the field. • Preparation of daily reports and test data sheets to document the items inspected. • Review excavation system protection plans for trench and structures submittals and provide written recommendations regarding contractors’ application of the plans throughout construction operations.
• Preparation of a Final Compaction Report for project close-out records.
Welding Inspection
In addition to Butier’s certified welding inspectors (CWI), Ninyo & Moore will provide personnel that are qualified for NDT II to perform nondestructive testing. Inspectors will provide welding inspection services and ultrasonic and radiographic testing as required. Provide 100 percent visual weld examination of all lap-welded field joints that are welded in place. Provide 100 percent visual and ultrasonic or radiographic inspection weld examination for butt -welded field joints that are welded in place. Provide 100 percent visual and radiographic weld examination through pipelines of butt -welded field joints. Provide periodic ultrasonic weld examination of other butt -welded or lap-welded joints as requested. All butt -welded joints to be radio graphed will be examined in accordance with AWS standards.
Ninyo & Moore’s Field Welding Special Inspector will perform services during welding and bolting onsite, as well as non -destructive examination of welds according to the construction documents. They will prepare logs and a final report of field weld tested joints.
Construction Surveying
Butier has selected Hillwig-Goodrow to perform the following construction surveying services:
Conduct construction survey control and spot check the accuracy of Contractor surveys, staking, elevations, reference marks, grade stakes, alignment stakes, monuments, curb stakes, street repairs, and existing utility crossing.
• Conduct field surveys, boundary analyses, and prepare project layout maps to prepare Records 01225.0001/863604.2 A1-9
of Survey for City right-of-way parcels.
• Prepare and file pre -construction and post -construction Records of Survey with the respective County Surveyors.
Grant Support
Butier will provide grant support, as necessary, to the City including, but not limited to, participating in meetings and field inspections by grant agencies, coordinating with labor compliance specialist for contractor payment processing, and providing the Program Manager with construction updates and photos, as necessary for grant reports.
Extended Services
Butier will provide other miscellaneous specialty services outlined in the RFP as required during construction. As stated previously, Butier’s Team of highly skilled professionals consists of professional engineers (civil, structural, electrical) and certified construction managers. Our core team will be supplemented by as -needed technical resources provided by our team member firms, including ON-SITE Technical Services (mechanical, startup/commissioning, and in -plant inspection) and Ninyo & Moore (geotechnical engineering, noise monitoring, and air quality monitoring).
1. Noise Monitoring
Ninyo & Moore will provide noise monitoring services as needed, during the demolition, excavation, grading, and site preparation phases of the project. Ninyo & Moore will review the Noise Mitigation Plan developed by the Contractor for all phases of operations to ensure compliance with local requirements, including the City’s municipal code’s permitted construction hours. Instruments such as Extech direct reading digital sound level meters or equivalent instruments equipped with data loggers will be used to monitor for noise levels.
2. Air Quality Monitoring
Ninyo & Moore’s SCAQMD trained and certified staff will provide air quality monitoring and documentation services to ensure mitigation measures are implemented during demolition, excavation, grading, and site preparation phases of the project. They will monitor the construction areas for proper implementation of mitigation measures including watering active construction areas to keep dust down, covering of soil stockpiles to prevent offsite migration of soils by wind and water, as well as proper housekeeping measures, including periodic street - sweeping to prevent tracking of soil offsite along haul routes. 01225.0001/863604.2 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
01225.0001/863604.2 C-1
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall be compensated for the services provided under this Agreement in accordance with the budget and rates provided in Exhibit “C-1”.
II. Within the budgeted amounts for each Task, and with the approva l of th e Project Manager, funds may be shifted from one Task subbudget to another so long as the Contract Sum i s not exceeded per Section 2.1, unless Additional Services are approved per Section 1.10.
III. The City will compensate Consultant for the Services performed upon submission of a valid invoice, as described in Section 2.4.
IV. The total compe nsation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.
01225.0001/863604.2 C1-1
EXHIBIT “C-1”
Butier Engineering, Inc. –
Estimated Level of Effort WA212 State Street CM
Support & Special inspection Services – City of
Chino
Senior
CM/RE
Lead
QA/QC
Inspection
Civil
Inspection
(WA212)
Field
Engineer/Asst.
CM
Senior
Scheduler
Electrical
Inspection &
Startup
Totals
Rate $ 240.00 $ 180.00 $ 165.00 $ 175.00 $ 225.00 $ 225.00 Pre-Construction/Project Control Services
1 Field Office Mobilization 8 32 12
2 Familiarity with the Work Site 24 24 12 16
3 Pre-Construction Site Survey 16 8
4 Pre-Construction Site Video 8
5 Full and Responsible Charge (Included
in Daily Management)
8 6 Master Submittal List 8
7 Pre-Construction Meeting 8 8 12
8 Monthly Invoicing 144 80
9 Safety Program (Included in Daily
Management)
10 Site Coordination (Included in Daily
Management)
11 Environmental Training (Reference
N&M Scope)
Correspondence & Reports
1 QA/QC Plan 8 24 8
2 Communications Manual 8
Meeting & Notice Procedures
1 Weekly Construction Progress Meetings 130 180 0 152
2 Monthly Project Report Meeting 60 60
3 Consultant Team Meeting 60 60
Shop Drawing and Submittal Reviews
1 Master Submittal List 80 24
2 Submittal Reviews and Logs 160 100
3 Schedule Reviews 100
4 Field Copies Submittals (Included in
Submittal Reviews)
Plan and Specification Review
1 Inspection of the Work 1450 180
2 RFI’s 80 90
3 Requests in Changes for Design
4 Value Engineering Proposals
5 Record Drawings 72 72
CM Administration & Staffing
1 Daily Management 350 200 4
2 Resolution of Day-to-Day Construction
Issues
Environmental Control
1 Project Management and Coordination
(Reference N&M Scope)
16 2 Compliance and Mitigation (Reference
N&M Scope)
50 3 Environmental Training (Reference
N&M Scope)
144
01225.0001/863604.2 C1-2
Butier Engineering, Inc. –
Estimated Level of Effort WA212 State Street CM
Support & Special inspection Services – City of Chino
Senior
CM/RE
Lead
QA/QC
Inspection
Civil
Inspection
(WA212)
Field
Engineer/Asst.
CM
Senior
Scheduler
Electrical
Inspection
& Startup
Totals
Rate $ 240.00 $ 180.00 $ 165.00 $ 175.00 $ 225.00 $ 225.00 Progress Payments and Cost Monitoring
1 Labor Compliance 180
2 Monthly Review 84
Change Order and Claims Management
1 Change Management
2 Claims Management
3 Monthly Project Reporting 84 84
O&M Manuals and Warranty
1 Compile and Submit 30
2 Major Equipment Warranty 24
Startup, Closeout and Acceptance
1 Pre-Operational Testing Plan 24 20
2 Punch List 20 40
3 Operator Training 20
4 Electrical and Instrumentation Startup 20
5 Final Walk Through 10 12 24
6 Final Change Orders 16 20 40
7 Certify Compliance
8 Recommend Acceptance
9 Close Out Contract
Post Construction
1 Internal; Notice of Completion 8
2 O&M Materials 8 12
3 Demobilization of Field Office 8 16
4 Final Payment 8 16
5 Final Construction Summary 8 16
Final Project Documentation
1 Contract Deliverables 12 12 16
2 Electronic Files
3 Final Record Drawings 20 24
Geotechnical/Materials Testing/On-site Sampling
1 See Ninyo & Moore’s Scope of Work
Construction Surveying
1 See Hillwig-Goodrow’s Scope of Work
TOTAL HOURS 1206 1898 0 1536 248 398
Construction Management Inspection and Startup
Cost
$289,440.00 $341,640.00 $ - $268,800.00 $55,800.00 $89,550.00 $1,045,230.00 Geotech/Materials/Sampling/NDT/Environmental (See Ninyo & Moore’s Attached SOW) $231,782.00 Construction Surveying (See Hillwig-Goodrow’s attached SOW) $50,000.00
TOTAL COSTS $1,327,012.00
01225.0001/863604.2 C1-3
Butier Engineering, Inc. –
Estimated Level of Effort WA214 Well 17
Equipping CM Support & Special inspection
Services – City of Chino
Senior
CM/RE
Lead
QA/QC
Inspection
Civil
Inspection
(WA212)
Field
Engineer/Asst.
CM
Senior
Scheduler
Electrical
Inspection &
Startup
Totals
Rate $ 240.00 $ 180.00 $ 165.00 $ 175.00 $ 225.00 $ 225.00 Pre-Construction/Project Control Services
1 Field Office Mobilization 4 16 12
2 Familiarity with the Work Site 12 12 12 8
3 Pre-Construction Site Survey 8 8
4 Pre-Construction Site Video 8
5 Full and Responsible Charge (Included
in Daily Management)
8 6 Master Submittal List 8
7 Pre-Construction Meeting 8 8 8
8 Monthly Invoicing 32 32
9 Safety Program (Included in Daily
Management)
10 Site Coordination (Included in Daily
Management)
11 Environmental Training (Reference
N&M Scope)
Correspondence & Reports
1 QA/QC Plan 4 12 8
2 Communications Manual 8
Meeting & Notice Procedures
1 Weekly Construction Progress Meetings 64 64 100
2 Monthly Project Report Meeting 40 30
3 Consultant Team Meeting 30 30
Shop Drawing and Submittal Reviews
1 Master Submittal List 85 24
2 Submittal Reviews and Logs 180 50
3 Schedule Reviews 94
4 Field Copies Submittals (Included in
Submittal Reviews)
Plan and Specification Review
1 Inspection of the Work 1000 80
2 RFI’s 90 90
3 Requests in Changes for Design
4 Value Engineering Proposals
5 Record Drawings 40 20
CM Administration & Staffing
1 Daily Management 375 225 2
2 Resolution of Day-to-Day Construction
Issues
Environmental Control
1 Project Management and Coordination
(Reference N&M Scope)
8 2 Compliance and Mitigation (Reference
N&M Scope)
50 3 Environmental Training (Reference
N&M Scope)
50 01225.0001/863604.2 C1-4
Butier Engineering, Inc. –
Estimated Level of Effort WA212 State Street CM
Support & Special inspection Services – City of Chino
Senior
CM/RE
Lead
QA/QC
Inspection
Civil
Inspection
(WA212)
Field
Engineer/Asst.
CM
Senior
Scheduler
Electrical
Inspection
& Startup
Totals
Rate $ 240.00 $ 180.00 $ 165.00 $ 175.00 $ 225.00 $ 225.00 Progress Payments and Cost Monitoring
1 Labor Compliance 64
2 Monthly Review 64
Change Order and Claims Management
1 Change Management
2 Claims Management
3 Monthly Project Reporting 84 84
O&M Manuals and Warranty
1 Compile and Submit 40
2 Major Equipment Warranty 24
Startup, Closeout and Acceptance
1 Pre-Operational Testing Plan 12 10
2 Punch List 20 20
3 Operator Training 16
4 Electrical and Instrumentation Startup 10
5 Final Walk Through 16 12 12
6 Final Change Orders 24 20 20
7 Certify Compliance
8 Recommend Acceptance
9 Close Out Contract
Post Construction
1 Internal; Notice of Completion 8
2 O&M Materials 8 12
3 Demobilization of Field Office 4 8
4 Final Payment 8 8
5 Final Construction Summary 8 8
Final Project Documentation
1 Contract Deliverables 12 12 16
2 Electronic Files
3 Final Record Drawings 20 24
Geotechnical/Materials Testing/On-site Sampling
1 See Ninyo & Moore’s Scope of Work
Construction Surveying
1 See Hillwig-Goodrow’s Scope of Work
TOTAL HOURS 980 1248 0 1165 146 226
Construction Management Inspection and Startup
Cost
$235,200.00 $224,640.00 $ - $203,875.00 $32,850.00 $50,850.00 $747,415.00 Geotech/Materials/Sampling/NDT/Environmental (See Ninyo & Moore’s Attached SOW) $72,624.00 Construction Surveying (See Hillwig-Goodrow’s attached SOW) $25,307.00
TOTAL COSTS: $845,346.00
GRAND TOTAL:
$2,172,358.00
01225.0001/863604.2 D-1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely in accordance with the fol lowing schedule:
*Finalized deadline dates will be contingent upon actualized pr oject schedules, which shall be approved by the Project Managers. Consultant will coordinate with City and Project Staff to ensure timely completion of services and adherence to approved task schedules.
II. The Project M anager may approve e xtensions for performance of the s ervices in accordance with Section 3.2.