PP23-7962
City of Pacific Grove
March 8, 2024
3. Establish and maintain files and documentation for use in change order negotiations or potential claims
4. Generate project change orders using the City’s template
5. Document delays or possible changes in work or site condition
6. Inspector to document Force Account work and review T&M tickets with Contractor at the end of each shift, as applicable
Quantity Calculations and Progress Estimates
1. Maintain quantity calculations throughout the project
2. Coordinate daily reports and quantities with the Contractor, identify and record potential disputes for future reference
3. Review monthly Request for Payment, sign, and recommend approval for payment to the City
4. Collect delivery and materials tickets for project record Construction Observation/Inspection
1. Provide onsite inspections and oversight during construction
2. Review compliance with contract documents
3. Prepare inspection reports, including tracking labor (name, classification, and estimated hours worked), equipment, weather, observations/notes, quantities, and photos. Including conversations or discussions that may be important. a. Daily reports to be provided weekly to the City’s Designated Representative or as requested
4. Notify the Contractor and City when work is performed that is unsatisfactory, faulty, or does not conform to the Contract documents and advise on how the work should be remedied
5. Inspector will help to coordinate notification of Police or other City Departments and may dialogue with the public on-site
6. Provide oversight on the requirements of the encroachment permit and ensure requirements are performed and documented
7. Inspections and oversight include:
a. Contractors Means and Methods
b. Review Contractors Survey and Layout
c. Material Deliveries and Tickets
d. Traffic control plans and implementation
e. Construction Staging Area
f. Site Safety and Signing
g. Stormwater Controls
8. Record and report design modifications
9. Track inspectors set of as-builts for comparison with set provided by the Contractor for project record
10. Inspection time may be adjusted accordingly based on scope of work and contractors activities
Site Documentation
1. Maintain photos and documentation throughout the project
2. All photos and documentation will be maintained in Procore and available to the entire team at all times
Stormwater Compliance and Permits
1. Monitor stormwater protection measures throughout the project to verify the Contractor is complying the contract provisions
Safety
1. Monitor contractor’s safety practices for compliance with safety program
2. Utilize the following documents during field safety monitoring program:
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PP23-7962
City of Pacific Grove
March 8, 2024
a. CAL-OSHA Construction safety orders
b. Traffic Control Plan
c. Contractor safety plan
d. Work with contractor to resolve any safety concerns on site e. Advise City of any observed or unresolved deficiencies Final Inspection and Punch List
1. Schedule punch list walk with the Contractor and City
2. Observe complete and near complete work for deficiencies
3. Establish and maintain punch list and track items to resolution
4. Recommend and approve final payment to Contractor
Deliverables:
1. Weekly Construction Meeting Agendas and Minutes
2. Inspector Daily Logs and Photos
3. Progress Payment Reviews
4. Change Order/Force Account Documentation
5. Punch List
CM - Post-Construction Phase
Record Drawings (See Task 6.0, ESDC)
1. Review as-built drawings with the contractor throughout the project
2. Review final as-built drawings submitted by the contractor
3. Assist City and Design Engineer in review and completion of final certified record drawings
Project Closeout
1. Assemble and deliver all records, reports, certificates, and pictures upon project completion
2. Files can be delivered in hard copy and/or electronic format Deliverables:
1. Comments and review of Contractors As-Built Drawings
2. Project Close Out Documentation (Submittals, RFIs, Daily Logs, Photos, Change Orders, Progress Payments, etc.)
Task 7.1: Earth Systems - Geotechnical Services, Materials Testing, and Special Inspections We have provided budget estimates for our subconsultant, Earth Systems, who will provide geotechnical services, materials testing, and special inspections to support construction of the project on a time and materials basis. Based on our prior experience, the following geotechnical services will likely be required for the draft project scopes.
1. Perform compaction testing of native soils, aggregate base, utility trench backfill, and asphalt roadway of the trench excavations
2. Collect concrete cylinder samples for structural concrete pours of slabs and retaining walls (if needed)
3. Perform pre-pour special inspection of reinforcing steel, concrete placements, mechanical anchors, and field welding (if needed)
Task 8.0 Environmental Mitigation Implementation
This task address Phase 4 environmental mitigation implementation. The adopted IS/MND includes mitigation measures that must be implemented before and/or during construction activities. The mitigation measures for biological resources are described in detail in EMC’s letter proposal. Only those mitigation measures that must be implemented by the City are described here; other mitigation measures either don’t apply to these CIPs, or are the PGCC 3-20-24
PP23-7962
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March 8, 2024
responsibility of the contractor (and therefore will be included in the contract documents for each CIP).
The scope of services for each CIP is generally described as follows:
• BIO-1, pre-construction survey for nesting birds. CIP1, CIP6, CIP9 • BIO-2, wetland delineation. CIP1 only
• BIO-3, jurisdictional permitting with USACE, CDFW, RWQCB. CIP1 (note: excludes permit fees, estimated at $24,333 per acre [2023 fee schedule]). CIP1 only
SCHEDULE
Upon Notice to Proceed, Wallace Group will work with the City to develop a project schedule for each project. It is understood that this project is to be completed over the 2024-2026 fiscal years.
TO BE PROVIDED BY THE CLIENT
• Sewer and Water Utility record drawings, Atlas Maps for existing sewers in each of the three CIP Project areas.
• Client shall provide the DIR Project Numbers for each project. To do so, the Client will need to complete the PWC-100 forms and submit to the DIR prior to the commencement of the field surveys. This is required to be in compliance with State of California Prevailing Wage laws.
ITEMS NOT INCLUDED IN SCOPE OF SERVICES
The following services are not included in this Scope of Services or estimate of fees:
• Potholing
• Sewer Modeling
• File Notice of Completion
• Labor Compliance
• Regulatory Permit Fees
PROJECT FEES
Wallace Group will perform the services denoted in the proposed Scope of Services in accordance with the attached Standard Billing Rates (Exhibit A). These services will be invoiced monthly on an accrued cost basis, and our total fees (excluding optional task), including reimbursables will not exceed our estimated fee of $1,769,097 without receiving written authorization from the Client.
The estimated fees denoted in Tasks 2 and 7, Survey, Geotechnical, and Inspection Services above are based on prevailing wage rates.
At your request, additional services to the Scope of Services (including optional tasks identified above) will be performed by Wallace Group following the signature of our Contract Amendment or the initiation of a new contract.
TERMS AND CONDITIONS
In order to convey a clear understanding of the matters related to our mutual responsibilities regarding this proposal, the attached Standard Terms and Conditions (Exhibit B) are considered a part of our proposal agreement. If this proposal meets with your approval, PGCC 3-20-24
PP23-7962
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March 8, 2024
please sign where indicated and return to our office, which will serve as our notice-toproceed.
We want to thank you for this opportunity to present our proposal for engineering services. If you would like to discuss this proposal in greater detail, please feel free to contact me.
Sincerely,
WALLACE GROUP, a California Corporation TERMS AND CONDITIONS ACCEPTED:
Kari E. Wagner, PE C66026 ____________________________________ Principal/Director of Water Resources Signature
612 Clarion Court ____________________________________
San Luis Obispo Printed Name
California 93401 ____________________________________
T 805 544-4011 Title
F 805 544-4294 ____________________________________
www.wallacegroup.us Date
Attachments
GGM: PP23-7962, 2024, std
Exhibit A
Exhibit B
THIS PROPOSAL IS VALID FOR 60 DAYS FROM THE DATE OF THIS DOCUMENT.
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Exhibit A
Standard Billing Rates
Engineering, Design & Support Services:
Assistant Designer/Technician ......................................... $120 Designer/Technician I – IV .............................................. $125/$135/$145/$155 Senior Designer/Technician I – III ...................................... $165/$172/$179 GIS Technical Specialist ................................................. $160 Senior GIS Technical Specialist ........................................ $170 Associate Engineer I – III ................................................ $135/$145/$155 Engineer I – IV ............................................................. $170/$175/$180/$185 Senior Engineer I - III .................................................... $200/$205/$210 Director .................................................................... $220 Principal Engineer/Consulting Engineer .............................. $245 Principal ................................................................... $270 Surveying Services:
Party Chief ................................................................ $182 Party Chief (*Prevailing Wage) ......................................... $250 Instrument Person ........................................................ $125 Instrument Person (*Prevailing Wage) ................................ $150 Associate Survey Technician ........................................... $120 Survey Technician I – IV ................................................. $135/$140/$150/$155 Land Surveyor I – III ...................................................... $160/$170/$180 Senior Land Surveyor I - III .............................................. $185/$190/$195 Director .................................................................... $220 Principal Surveyor ........................................................ $245 Principal ................................................................... $270 Construction Management / Field Inspection Services:
Construction Inspector I - II ............................................. $140/$155 Senior Construction Inspector .......................................... $160 Construction Inspector (*Prevailing Wage) ........................... $180 Construction Office Tech I-III ........................................... $115/$125/$135 Assistant Resident Engineer I - II....................................... $165/$170 Resident Engineer I - III ................................................. $175/$180/$185 Senior Resident Engineer ............................................... $195 Director .................................................................... $220 Principal Construction Manager ........................................ $245 Principal ................................................................... $270 Support Services:
Office Assistant ........................................................... $110 Project Assistant I – III ................................................... $120/$125/$135 2024 Standard Billing Rates 1
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*Prevailing Wage:
State established prevailing wage rates will apply to some services based on state law, prevailing wage rates are subject to change over time and geographic location.
Right to Revisions:
Wallace Group reserves the right to revise our standard billing rates on an annual basis, personnel classifications may be added as necessary.
Additional Professional Services:
Fees for expert witness preparation, testimony, court appearances, or depositions will be billed at the rate of $400 an hour. If required to meet schedule requests, overtime on a project will be billed at 1.5 times the employee’s typical hourly rate.
Direct Expenses:
Direct expenses will be invoiced to the client and a handling charge of 15% may be added.
Sample direct expenses include, but are not limited to the following:
travel expenses sub-consultant services agency fees delivery/copy services mileage (per IRS rates) other direct expenses Invoicing and Interest Charges:
Invoices are submitted monthly on an accrued cost basis. A finance charge of 1.5% per month may be assessed on all balances that are thirty days past due.
WALLACE GROUP 2
2024 Standard Billing Rates
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Exhibit B
Standard Terms and Conditions
Wallace Group Proposal No. PP23-7962
Contract Agreement Date: March 8, 2024
CLIENT: CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
CONSULTANT: WALLACE GROUP, A CALIFORNIA CORPORATION
612 Clarion Court, San Luis Obispo, California 93401
CLIENT and CONSULTANT agree that these Standard Terms and Conditions, comprised of pages 1 through 6, and the associated written Scope of Services and budget constitute the entire Agreement between the CLIENT and the CONSULTANT.
It supersedes all prior communications, understandings and agreements, whether oral or written. Amendments to this Agreement must be in writing and signed by both the CLIENT and the CONSULTANT.
ARTICLE 1. GENERAL PROVISIONS
1.1 Preamble
This Agreement is based upon a mutual obligation of good faith and fair dealing between the parties in its performance and enforcement. Accordingly, the CLIENT and the CONSULTANT, with a positive commitment to honesty and integrity, agree to the following:
That each will function within the laws and statutes that apply to its duties and responsibilities; that each will assist in the other’s performance; that each will avoid hindering the other’s performance; that each will work diligently to fulfill its obligations; and each will cooperate in the common endeavor of the contract.
1.2 Governing Law and Jurisdiction
The CLIENT and the CONSULTANT agree that this Agreement and any legal actions concerning its validity, interpretation and performance shall be governed by the laws of the State of California. It is further agreed that any legal action between the CLIENT and the CONSULTANT arising out of this Agreement or the performance of the services shall be brought in a court of competent jurisdiction in San Luis Obispo, California.
1.3 Precedence of Conditions
Should any conflict exist between the terms herein and the form of any purchase order or confirmation issued, the Terms and Conditions herein shall prevail in the absence of CONSULTANT’S express written consent of others conditions.
1.4 Standard of Care
In providing services under this Agreement, the CONSULTANT will endeavor to perform said services in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances.
1.5 Corporate Protection
It is intended by the parties to this Agreement that the CONSULTANT’S services in connection with the Project shall not subject the CONSULTANT’S individual employees, officers or directors to any personal legal exposure for the risks associated with this Project. Therefore, and notwithstanding anything to the contrary contained herein, the CLIENT agrees that as the CLIENT’S sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against the CONSULTANT, a California corporation, and not against any of the CONSULTANT’S individual employees, officers or directors.
1.6 Confidentiality
The CONSULTANT agrees to keep confidential and not to disclose to any person or entity, other than the CONSULTANT’S employees, Subconsultants and the general Contractor and Subcontractors, if appropriate, any data or information not previously known to and generated by the CONSULTANT or furnished to the CONSULTANT and marked CONFIDENTIAL by the CLIENT. These provisions shall not apply to information in whatever form that is in the public domain, nor shall it restrict the CONSULTANT from giving notices required by law or complying with an order to provide information or data when such order is issued by a court, administrative agency or other legitimate authority, or if disclosure is reasonably necessary for the CONSULTANT to defend itself from any legal action or claim.
1.7 Third-Party Beneficiaries
Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the CLIENT or the CONSULTANT. The CONSULTANT’S services under this Agreement are being performed solely for the CLIENT’S benefit, and no other party or entity shall have any claim against the CONSULTANT because of this Agreement or the performance or nonperformance of services hereunder. The CLIENT and CONSULTANT agree to require a similar provision in all contracts with Contractors, Subcontractors, Subconsultants, vendors and other entities involved in this Project to carry out the intent of this provision.
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1.8 Timeliness of Performance
The CLIENT and CONSULTANT are aware that many factors outside the CONSULTANT’S control may affect the CONSULTANT’S ability to complete the services to be provided under this Agreement. The CONSULTANT will perform these services with reasonable diligence and expediency consistent with sound professional practices.
1.9 Severability
Any term or provision of this Agreement found to be invalid under any applicable statute or rule of law shall be deemed omitted and the remainder of this Agreement shall remain in full force and effect.
1.10 Survival
Notwithstanding completion or termination of this Agreement for any reason, all rights, duties and obligations of the parties to this Agreement shall survive such completion or termination and remain in full force and effect until fulfilled.
1.11 Statutes of Repose and Limitation
All legal causes of action between the parties to this Agreement shall accrue and any applicable statutes of repose or limitation shall begin to run not later than the date of Substantial Completion. If the act or failure to act complained of occurs after the date of Substantial Completion, then the date of final completion shall be used, but in no event shall any statute of repose or limitation begin to run any later than the date the CONSULTANT’S services are completed or terminated.
1.12 Defects in Service
The CLIENT shall promptly report to the CONSULTANT any defects or suspected defects in the CONSULTANT’S services of which the CLIENT becomes aware, so that the CONSULTANT may take measures to minimize the consequences of such a defect. The CLIENT further agrees to impose a similar notification requirement on all Contractors in its CLIENT/Contractor contract and shall require all subcontracts at any level to contain a like requirement. Failure by the CLIENT and the CLIENT’S Contractors or Subcontractors to notify the CONSULTANT shall relieve the CONSULTANT of the costs or remedying the defects above the sum such remedy would have cost had prompt notification been given when such defects were first discovered.
1.13 Jobsite Safety
Neither the professional activities of the CONSULTANT, nor the presence of the CONSULTANT or its employees or Subconsultants at a construction/project site, shall relieve the General Contractor of its obligations, duties and responsibilities including, but not limited to, constructions means, methods, sequence, techniques or procedures necessary for performing, superintending and coordinating the Work in accordance with contract documents and any health or safety precautions required by any regulatory agencies. The CONSULTANT and its personnel have no authority to exercise any control over any construction Contractor or its employees in connection with their work or any health or safety programs or procedures. The CLIENT agrees that the General Contractor shall be solely responsible for jobsite safety, and warrants that this intent shall be carried out in the CLIENT’S contract with the General Contractor. The CLIENT also agrees that the CLIENT, the CONSULTANT and the CONSULTANT’S Subconsultants shall be indemnified by the General Contractor and shall be made additional insured under the General Contractor’s policies of general liability insurance.
1.14 Assignment: Subcontracting
Neither CLIENT nor CONSULTANT shall assign its interest in this agreement without the written consent of the other.
CONSULTANT may not subcontract any portion of the work to be performed hereunder without such consent.
1.15 Force Majeure
Any delay or default in the performance of any obligation of CONSULTANT under this agreement resulting from any cause(s) beyond CONSULTANT'S reasonable control shall not be deemed a breach of this agreement. The occurrence of any such event shall suspend the obligations of CONSULTANT as long as performance is delayed or prevented thereby, and the fees due hereunder shall be equitably adjusted.
1.16 Disputes
(a) Not withstanding any other provision of this Agreement and except for the provisions of (b) and (c), if a dispute arises regarding CONSULTANT'S fees pursuant to this contract, and if the fee dispute cannot be settled by discussions between CLIENT and CONSULTANT, both the CLIENT and CONSULTANT agree to attempt to settle the fee dispute by mediation through the American Arbitration Association (or other mediation service) before recourse to arbitration. If mediation does not resolve the fee dispute, such dispute shall be settled by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof.
(b) Subdivision (a) does not preclude or limit CONSULTANT’S right to elect to file an action for collection of fees if the amount in dispute is within the jurisdiction of the small claims court. (c) Subdivision (a) does not preclude or limit CONSULTANT’S right to elect to perfect or enforce applicable mechanics lien remedies.
1.17 Attorneys’ Fees
In the event of any litigation arising from or related to this Agreement or the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys’ fees and all other related expenses in such litigation.
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1.18 Services by CLIENT
CLIENT shall pay all other charges not specifically covered by the terms of this agreement, unless specifically included in the Scope of Services. The CLIENT shall furnish, at the CLIENT’S expense, all information required by this Agreement. The CONSULTANT may use such information, requirements, reports, data, surveys and instructions in performing its services and is entitled to rely upon the accuracy and completeness thereof.
1.19 Retention
If any portion of CONSULTANT’S fee is held in retention, such amount shall be released within thirty days after invoicing for completion of corresponding services. Interest shall be paid at the rate of 1.5% per month on any retention amounts not paid within this thirty-day period.
ARTICLE 2. DEFINITIONS
2.1 Burdened Labor Costs
Burdened labor costs shown on the Standard Billing Rates include payroll taxes, worker’s compensation insurance, and other overhead costs applicable to the typical standard of care.
2.2 Direct Expenses
Expenditures made by the CONSULTANT, its employees or its Subconsultants in the interest of the Project. Applicable reimbursable direct expenses are defined on the Standard Billing Rates.
ARTICLE 3. COMPENSATION
3.1 Payment Due
Invoices shall be submitted by the CONSULTANT monthly, are due upon presentation and shall be considered past due if not paid in full within thirty (30) days of the invoice date.
3.2 Interest
If payment in full is not received by the CONSULTANT within thirty (30) calendar days of the invoice date, the invoices shall bear interest at one-and-one-half (1.5) percent (or the maximum rate allowable by law, whichever is less) of the past due amount per month, which shall be calculated from the invoice due date. Payment thereafter shall first be applied to accrued interest and then to the unpaid principal.
3.3 Collection Costs
If the CLIENT fails to make payments when due and the CONSULTANT incurs any costs in order to collect overdue sums from the CLIENT, the CLIENT agrees that all such collection costs incurred shall immediately become due and payable to the CONSULTANT. Collection costs shall include, without limitation, legal fees, collection agency fees and expenses, court costs, collection bonds and reasonable CONSULTANT staff costs at Standard Billing Rates for the CONSULTANT’S time spent in efforts to collect. This obligation of the CLIENT to pay the CONSULTANT’S collection costs shall survive the term of this Agreement or any earlier termination by either party.
3.4 Termination or Suspension of Services
This agreement may be terminated or suspended by either party effective seven (7) days from the date of written notice, or if the CLIENT suspends the work for three (3) months. Upon receipt of a notice of termination or suspension, CONSULTANT will stop or suspend its work and provide same direction for the work of all its Subcontractors and suppliers. Failure of CLIENT to make payments when due shall be cause for suspension of services or ultimately, termination, unless and until CONSULTANT has been paid in full all amounts due for services, expenses and other approved related charges. CONSULTANT shall have no liability whatsoever to the CLIENT for any costs or damages as a result of such suspension or termination caused by any breach of this Agreement by the CLIENT. Upon payment-in-full by the CLIENT, CONSULTANT shall resume services under this Agreement, and the time schedule and compensation shall be equitably adjusted to compensate for the period of suspension plus any reasonable time and expense necessary for the CONSULTANT to resume performance.
3.5 Retention Discounts
Payment of invoices shall not be subject to any discounts or retention by the CLIENT, unless agreed to in writing by the CONSULTANT. Payment to the CONSULTANT for services rendered and expenses incurred shall be due and payable regardless of any subsequent suspension or termination of this Agreement by either party.
3.6 Satisfaction with Services
Payment of any invoice by the CLIENT to the CONSULTANT shall be taken to mean that the CLIENT is satisfied with the CONSULTANT’S services to the date of payment and is not aware of any deficiencies in those services.
3.7 Disputed Invoices
If the CLIENT objects to any portion of any invoice, the CLIENT shall so notify the CONSULTANT in writing within ten (10) days of receipt of the invoice. The CLIENT shall identify in writing the specific cause of the disagreement and the amount in dispute and shall pay that portion of the invoice not in dispute in accordance with the other payment terms of this Agreement. Any dispute over invoiced amounts due which cannot be resolved within thirty (30) calendar days after presentation of invoice by direct negotiation between the parties shall be resolved within forty-five (45) calendar days in PGCC 3-20-24
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accordance with the Dispute Resolution provision of this Agreement. Interest as stated above shall be paid by the CLIENT on all disputed invoice amounts that are subsequently resolved in the CONSULTANT’S favor and shall be calculated on the unpaid balance from the invoice date.
3.8 Payments to the CONSULTANT
Payments to the CONSULTANT shall not be withheld, postponed or made contingent on the construction, completion or success of the project or upon receipt by the CLIENT of offsetting reimbursement or credit from other parties who may have caused additional services or expenses. No withholdings, deductions or offsets shall be made from the CONSULTANT’S compensation for any reason unless the CONSULTANT has been found to be legally liable for such amounts.
3.9 Advance Payment: Withholding Work Product
CONSULTANT reserves the right to require payment in advance for work estimated to be done during a given billing period.
CONSULTANT, without any liability to CLIENT, reserves the right to withhold any services and work products herein contemplated pending payment of CLIENT'S outstanding indebtedness or advance payment as required by CONSULTANT.
Where work is performed on a reimbursable basis, budget may be increased by amendment to complete the Scope of Services. CONSULTANT is not obligated to provide services in excess of the authorized budget.
ARTICLE 4. SERVICES, ADDITIONAL SERVICES, AND AMENDMENTS
4.1 Definitions
Services and work products not expressly included with those specified in this agreement, as determined by CONSULTANT, are not covered by this agreement. Such services and work products will be provided only upon compliance with the procedures set forth in Article 4.5 of this Agreement.
4.2 Services During Construction
Any construction inspection or testing provided by CONSULTANT is for the purpose of determining the Contractor's compliance with the functional provisions of the project specifications only. CONSULTANT in no way guarantees or insures Contractor's work nor assumes responsibility for methods or appliances used by the Contractor for job site safety or for Contractor's compliance with laws and regulations. CLIENT agrees that in accordance with generally accepted construction practices the construction Contractor will be required to assume sole and complete responsibility for job site conditions during the course of construction of the project including safety of all persons and property and that this responsibility shall be continuous and not be limited to normal working hours.
4.3 Soil Testing
CONSULTANT makes no representations concerning soil conditions, and is not responsible for any liability that may arise out of the making or failure to make soil surveys, or sub-surface soil tests, or general soil testing. It is the CLIENT’S responsibility to obtain a soils report upon which report CONSULTANT can rely.
4.4 Opinion of Probable Construction Costs
In providing opinions of probable construction cost, the CLIENT understands that the CONSULTANT has no control over cost or availability of labor, equipment or materials, or over market conditions or the Contractor’s method of pricing, and that the CONSULTANT’S opinions of probable construction costs are made on the basis of the CONSULTANT’S professional judgment and experience. CONSULTANT makes no warranty, express or implied, that bids or negotiated cost of the Work will not vary from the CONSULTANT’S opinion of probable construction cost.
4.5 Additional Services
Additional services or work products requiring an adjustment of CONSULTANT'S original estimated budget or fixed fee will be provided at CLIENT'S request upon execution of a written amendment to this agreement expressly referring to the same and signed by both parties.
ARTICLE 5. TERMINATION OF AGREEMENT
5.1 Due to Default
This agreement may be terminated by either party upon seven (7) days written notice should the other party fail to substantially perform in accordance with this agreement through no fault of the party initiating the termination.
5.2 Without Cause
This agreement may be terminated by CLIENT upon at least fourteen (14) days written notice to CONSULTANT in the event that the project is abandoned.
5.3 Termination Adjustment: Payment
If this agreement is terminated through no fault of the CONSULTANT, CONSULTANT shall be paid for services performed and costs incurred to the termination notice date, including reimbursable expenses due, plus an additional amount not to exceed ten percent (10%) of charges incurred to the termination notice date to cover services to orderly close the work and prepare project files and documentation, plus any additional direct expenses incurred by CONSULTANT including but limited to cancellation fees or charges. CONSULTANT will use reasonable efforts to minimize such additional charges.
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ARTICLE 6. LIMITATION OF LIABILITY: WAIVER: WARRANTY
6.1 Limitation of Liability
In recognition of the relative risks and benefits of the project to both the CLIENT and the CONSULTANT, the risks have been allocated such that the CLIENT agrees, to the fullest extent permitted by law, to limit the liability of the CONSULTANT to the CLIENT for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert-witness fees and costs, so that the total aggregate liability of the CONSULTANT to the CLIENT shall not exceed $50,000.00, or the CONSULTANT’S total fee for services rendered on this project, whichever is greater. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
6.2 Contractor and Subcontractor Claims
The CLIENT further agrees, to the fullest extent permitted by law, to limit the liability of the CONSULTANT and the CONSULTANT’s officers, directors, partners, employees and Subconsultants to all construction Contractors and Subcontractors on the Project for any and all claims, losses, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that the total aggregate liability of the CONSULTANT and the CONSULTANT’s Subconsultants to all those named shall not exceed $50,000.00, or the CONSULTANT’s total fee for services rendered on this Project, whichever is greater. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
6.3 Warranty
CONSULTANT makes no warranty, either express or implied, as to CONSULTANT’S findings, recommendations, specifications, or professional advice, except that the work was performed pursuant to generally accepted standards of practice in effect at the time of performance.
If, during the term of this Agreement, circumstances or conditions that were not originally contemplated by or known to the CONSULTANT are revealed, to the extent that they affect the Scope of Services, compensation, schedule, allocation of risks or other material terms of this Agreement, the CONSULTANT may call for renegotiation of appropriate portions of this Agreement. The CONSULTANT shall notify the CLIENT of the changed conditions necessitating renegotiation, and the CONSULTANT and the CLIENT shall promptly and in good faith enter into renegotiations of this Agreement to address the changed conditions. If terms cannot be agreed to, the parties agree that either party has the absolute right to terminate this Agreement, in accordance with the Termination Provision hereof.
If the Scope of Services pursuant to this agreement does not include on-site construction review, construction management, or other construction supervision for this project, or if subsequent to this agreement CLIENT retains other persons or entities to provide such services, CLIENT acknowledges that such services will be performed by others and CLIENT will defend, indemnify and hold CONSULTANT harmless from any and all claims arising from or resulting from the performance of such services by other persons or entities except claims caused by the sole negligence or willful misconduct of CONSULTANT; and from any and all claims arising from or resulting from clarifications, adjustments, modifications, discrepancies or other changes necessary to reflect changed field or other conditions, except claims caused by the sole negligence or willful misconduct of CONSULTANT.
6.4 Interpretation
Limitations on liability, waivers and indemnities in this Agreement are business understandings between the parties and shall apply to all legal theories of recovery, including breach of contract or warranty, breach of fiduciary responsibility, tort (including negligence), strict or statutory liability, or any other cause of action, provided that these limitations on liability, waivers and indemnities will not apply to any losses or damages that may be found by a trier of fact to have been caused by the CONSULTANT’S sole or gross negligence or the CONSULTANT’S willful misconduct. The parties also agree that the CLIENT will not seek damages in excess of the contractually agreed-upon limitations directly or indirectly through suites against other parties who may join the CONSULTANT as a third-party defendant. “Parties” means the CLIENT and the CONSULTANT, and their officers, directors, partners, employees, Subcontractors and Subconsultants.
6.5 Delays
The CLIENT agrees that the CONSULTANT is not responsible for damages arising directly or indirectly from any delays for causes beyond the CONSULTANT’S control. For purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes; severe weather disruptions or other natural disasters; fires, riots, war or other emergencies or acts of God; failure of any government agency to act in a timely manner; failure of performance by the CLIENT of the CLIENT’S Contractors or CONSULTANT’S; or discovery of any hazardous substances or differing site conditions.
ARTICLE 7. HAZARDOUS WASTE MATERIALS
7.1 Liability
CONSULTANT hereby states and CLIENT hereby acknowledges that CONSULTANT has no professional liability insurance for claims arising out of the performance of or failure to perform professional services, including, but not limited to the preparation of reports, designs, drawings and specifications, related to the investigation, detection, abatement, replacement, use or specification, or removal of products, materials or processes containing substances including, but not limited to asbestos, toxic or hazardous waste, PCBs, combustible gases and materials, petroleum or radioactive materials (as each of these is defined in applicable federal statues) or any other substances under any conditions and in such quantities as PGCC 3-20-24
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would pose a substantial danger to persons or property exposed to such substances at or near the Project site. Accordingly, the CLIENT hereby agrees to bring no claim for negligence, breach of contract indemnity or otherwise against the CONSULTANT, its principals, employees, and agents if such claim, in any way, would involve the CONSULTANT’S services for the investigation, detection, abatement, replacement, use or specification, or removal of products, materials or processes containing asbestos, asbestos cement pipe, and/or hazardous waste materials. CLIENT further agrees to defend, indemnify and hold harmless CONSULTANT, its officers, directors, principals, employees and agents from any asbestos and/or hazardous waste material related claims that may be brought by third parties as a result of the services provided by the CONSULTANT pursuant to this agreement except claims caused by the sole negligence or willful misconduct of the CONSULTANT.
ARTICLE 8. OWNERSHIP AND REUSE OF DOCUMENTS
8.1 CONSULTANT Ownership
All original papers, documents, drawings, electronic media and other work product of CONSULTANT, and copies thereof, produced by CONSULTANT pursuant to this agreement shall remain the property of CONSULTANT and may be used by CONSULTANT without the consent of CLIENT. Upon request and payment of the costs involved, CLIENT is entitled to a copy of all papers, documents and drawings provided CLIENT'S account is paid current.
8.2 Document Reuse
In the event the CLIENT, the CLIENT’S Contractors or Subcontractors, or anyone for whom the CLIENT is legally liable makes or permits to be made any changes to any reports, plans specifications or other construction documents prepared by the CONSULTANT without obtaining the CONSULTANT’S prior written consent, the CLIENT shall assume full responsibility for the results of such changes. Therefore the CLIENT agrees to waive any claim against the CONSULTANT and to release the CONSULTANT from any liability arising directly or indirectly from such changes. In addition, the CLIENT agrees, to the fullest extent permitted by law, to indemnify and hold harmless the CONSULTANT from any damages, liabilities or costs, including reasonable attorneys’ fees and costs of defense, arising from such changes. In addition, the CLIENT agrees to include in any contracts for construction appropriate language that prohibits the Contractor or any Subcontractors of any tier from making any changes or modifications to the CONSULTANT’S construction documents without the prior written approval of the CONSULTANT and further requires the Contractor to indemnify both the CONSULTANT and the CLIENT from any liability or cost arising from such changes made without proper authorization.
8.3 Electronic Media Alteration and Reuse
Because CADD information stored in electronic form can be modified by other parties, intentionally or otherwise, without notice or indication of said modifications, CONSULTANT reserves the right to remove all indicia of its ownership and/or involvement in the material from each electronic medium not held in its possession. CLIENT shall retain copies of the work performed by CONSULTANT in CADD form only for information and use by CLIENT for the specific purpose for which CONSULTANT was engaged. Said materials shall not be used by CLIENT, or transferred to any other party, for use in other projects, additions to the current project, or any other purpose for which the material was not strictly intended by CONSULTANT without CONSULTANT'S express written permission. Unauthorized modification or reuse of the materials shall be at CLIENT'S sole risk, and CLIENT agrees to defend, indemnify, and hold CONSULTANT harmless, from all claims, injuries, damages, losses, expenses, and attorney's fees arising out of the unauthorized modification or use of these materials.
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Agenda No. 13 C
CITY OF PACIFIC GROVE
300 Forest A venue, Pacific G rove, California 93950
TO : Honorable Mayor and Members of the City Council
FRO M: Robert Perrault, City Manager
MEETIN G D A TE: March 20, 2024
SU BJECT: Consider Transitioning from Six (6) to Four (4) Council Members CEQ A : Does not constitute a Project per California Environmental Quality Act Guidelines Section 15378
RECO MMEN D A TIO N
Direct the City Manager to return to the Council with the documents necessary to place a measure on the ballot reducing the Council's composition from six (6) to (4) members.
D ISCU SSIO N
During the last Council meeting, I received directions from the Council to issue a Request for Proposal (RFP) to retain a demographer.
The decision to retain a demographer is the first step taken by the Council to move from the current at large voting system to a districtbased voting system. This action was taken based on the recommendation from the City Attorney which stemmed from the City's receipt of a letter from Mr. Sandoval, District Director for the League of United Latin American Citizens (LULAC). In his letter, Mr. Sandoval requested the city transition from the current system to the district-based system to comply with the California Voting Rights Act, and avoid potential litigation based on a possible violation of the Act.
I am in the process of retaining the demographer who will then complete a study of the City based on the 2020 census and will include an analysis of the City's population, its ethnic composition, and proportion of eligible voters according to ethnic group and socioeconomic characteristics. This information will be returned to the Council as a prerequisite for the Council's adoption of a Resolution of Intent to move to the by district voting system and the development of district maps. The information contained in the demographer's report will be used to assist the city with the development of the maps. The creation of the proposed districts along with the amendment to the City Charter would be placed before the electorate in the general election of 2026.
Converting the current at large voting system to the by district voting system raises the issue of Council composition. As outlined in the City's Charter Article 6, the City Council consists of six council members and the mayor, all of which are elected at large. This composition has existed since the Charter's adoption by the voters in 1927. In order to move to a by district voting system, six districts would need to be created to retain the current council composition. More recently, in 2022, the Council placed Measure O on the ballot to reduce the Council membership size from 6 members to 4 members and the mayor. See agenda report authored by Council Member Coletti on May 18, 2022. According to the City Clerk, this measure failed to pass by only 13 votes.
As noted, it may be timely to consider once again a reduction in Council seats. In Council Member Coletti's report, he notes that nearly 90% of California cities have a council composition of 5 seats. Cities with a 7-member council composition is more the exception to the rule at 6.5% of the total. Please keep in mind that there are more than 450 cities statewide of varying sizes. All of Monterey County Cities have 5 member councils. Finally, in the 40 years I have served California cities, all have been with cities composed of 5-member councils.
From a very practical perspective, a possible reduction in seats makes sense with respect to the creation of districts. Pacific Grove remains a very small city consisting of approximately 2.5 square miles and a population of slightly more than 15,000. The creation of six districts of equitable size and neighborhoods of interest would be more difficult than the creation of 4 districts. The creation of 6 districts versus 4 with the relatively same number of voters could also prove challenging. The registered voter makeup of the city is between 8 and 10,000 voters. Six districts would equate to between 1300 and 1600 voters per district. Four districts would increase the number of registered voters per district. The creation of four districts will also increase the universe for eligible potential candidates. It has been my experience in small cities with small districts that it is more difficult to find candidates who are willing to step forward to assume the mantle of leadership. In the event no one steps forward and a vacancy exists, the vacancy will need to be filled in keeping with the Charter, which could mean an appointment of an eligible resident of the correlating district. In moving to 4 or 6 districts, I would recommend continuing to elect the mayor at large.
N ext Steps.
Should the Council wish to consider the reduction in its composition, it would be appropriate to direct the City Manager to prepare documents necessary to file the measure with the County Clerk for consideration by the voters in November 2024. Staff would also suggest that the Council consider using similar language to that used in 2022. (Please see the attachment.) Should the measure be successful, the reduction in seats would not be implemented until the November 2026 Council election. The advantage of moving forward with this question at this time is that a voter decision on the composition of the Council will provide clear direction in terms of developing maps for 4 or 6 districts.
O PTIO N S
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1. The Council could take no action at this time; or
2. Provide the City Manager with additional direction.
FIN A N CIA L IMPA CT:
There is no direct financial impact associated with consideration of this item at this time. Placing a measure on the ballot for voter consideration will have associated costs. The City Manager will bring an estimate of costs to the Council for consideration, once the documents are prepared.
FO CU SED PRIO RITY A REA : Not Applicable.
A ttachments
22-039 Charter Amendment Reso
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