PISMO BEACH CITY COUNCIL STAFF REPORT
Agenda Item #9.I
Meeting Date: July 16, 2024
TITLE:
Agreement with Earth Systems Pacific for Special Inspection and Materials Testing Services Related to the Public Safety Facility
RECOMMENDATION:
Adopt a Resolution authorizing the City Manager to enter into a Professional Services Agreement with Earth Systems Pacific in the amount of $276,430 for Special Inspection and Materials Testing Services for the Public Safety Facility project, and appropriating related budget adjustments in Fiscal Year 2025.
DISCUSSION:
On July 18, 2023, the City Council awarded a contract for construction of a Public Safety Facility as part of the Council’s goal to enhance public safety service to the community.
Completion of the project requires special inspection and materials testing services to verify compliance with the project plans and specifications.
Staff solicited quotes from consultants for special inspection and materials testing services. Of the three consultants that staff identified as the only potential available consultants that could provide this service, only one consultant is able to provide these services. Since there is only one source for this service, Council is requested to approve the agreement as a sole-source procurement. Staff received a proposal from Earth Systems Pacific (Earth Systems) on June 12, 2024 (cost proposal provided as Attachment 1.A).
Conclusion and Recommendation
Staff recommends that the Council adopt a Resolution (Attachment 1) authorizing the City Manager to enter into a Professional Services Agreement with Earth Systems Pacific in the amount of $276,430 for Special Inspection and Materials Testing Services for the Public Safety Facility Project.
FISCAL IMPACT:
The fiscal impact of adopting the Resolution is $276,430 for Earth Systems Pacific services. Staff recommends that this cost be budgeted in the FY 2025 Capital Projects Fund Public Safety Facility project budget to support this agreement, supported by a transfer from the General Fund.
ATTACHMENTS:
1. Resolution
1.A Exhibit A to Resolution: Earth Systems Cost Proposal
2. Professional Services Agreement
Council Agenda 7-16-2024 9.I-1
Prepared by:
Erin Olsen, Senior Management Analyst
Submitted by: Benjamin A. Fine, P.E., Director of Public Works/City Engineer City Manager Approval:
Council Agenda 7-16-2024 9.I-2
RESOLUTION NO. R-2024-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA AUTHORIZING THE CITY MANAGER TO ENTER INTO A
PROFESSIONAL SERVICES AGREEMENT WITH EARTH SYSTEMS PACIFIC IN THE AMOUNT OF $276,430 FOR SPECIAL INSPECTION AND MATERIALS
TESTING SERVICES FOR THE PUBLIC SAFETY FACILITY PROJECT, AND APPROPRIATING RELATED BUDGET ADJUSTMENTS IN FISCAL YEAR 2025 WHEREAS, on July 18, 2023, the City Council awarded a contract for construction of a Public Safety Facility as part of the Council’s goal to enhance public safety service to the community; and
WHEREAS, completion of the project requires special inspection and materials testing services to verify compliance with the project plans and specifications; and WHEREAS, staff solicited quotes from consultants for special inspection and materials testing services; and
WHEREAS, after soliciting quotes from three potential consultants, staff determined that only one consultant is capable of providing the required services, thereby making this a sole-source procurement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to enter into a Professional Services Agreement with Earth Systems Pacific in the amount of $276,430 for Special Inspection and Materials Testing Services for the Public Safety Facility project (scope provided as Exhibit A).
BE IT FURTHER RESOLVED that the City Council of the City of Pismo Beach hereby appropriates $276,430 in the Fiscal Year 2025 Capital Projects Fund Public Safety Facility project budget, supported by a transfer from the General Fund, to support this agreement.
UPON MOTION OF Council Member , seconded by Council Member , the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 16th day of July 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Council Agenda 7-16-2024 9.I-3
Attachment 1
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Pismo Beach, California, on _______________________. ________________________
Erica Inderlied, City Clerk
Council Agenda 7-16-2024 9.I-4
Attachment 1
Earth Systems Fee Breakdown
PROJECT:
DATE:
Hours/Units Rate Total
Senior Management/Quality Control 50 $230.00 $11,500.00 Project Management 200 $175.00 $35,000.00
Grading Observation and Testing - 2024 344 $145.00 $49,880.00 Special Inspection - 2024 224 $150.00 $33,600.00
Grading Observation and Testing -2025 136 $150.00 $20,400.00 Special Inspection -2025 560 $155.00 $86,800.00
Reporting and Document Posting 100 $125.00 $12,500.00
Compaction Tests (per test) 300 $10.00 $3,000.00
Mileage (per trip) 200 $21.25 $4,250.00
Laboratory Testing - Per Fee Schedule (Allotment) $15,000.00 DIR/ECPR Posting 50 $90.00 $4,500.00
$276,430.00ESTIMATED TOTAL
City of Pismo Beach - Public Safety Facility
June 11, 2024
Council Agenda 7-16-2024 9.I-5
Attachment 1.A
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Vendor Agreement (Rev. 2/2/2018)
CITY OF PISMO BEACH
VENDOR AGREEMENT FOR PROFESSIONAL SERVICES
This Vendor Agreement for Professional Services (“AGREEMENT”) is made and entered into as of the date the AGREEMENT is fully executed by all parties (the “Effective Date”), by and between the City of Pismo Beach, a municipal corporation (“CITY”), and Earth Systems Pacific (“VENDOR”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
RECITALS:
CITY wishes to retain the services of an experienced and qualified VENDOR to provide the following services:
Special Inspection and Materials Testing Services for the Public Safety Facility Project
VENDOR represents and warrants that it is qualified to perform those services.
AGREEMENT:
I. SERVICES TO BE PERFORMED BY VENDOR
VENDOR will provide the services listed in the Scope of Services attached hereto as Exhibit A.
VENDOR warrants that all work and services set forth in the Scope of Services will be performed in a competent, professional and satisfactory manner. Extra work beyond that described in the Scope of Services is not authorized without the express written approval of CITY. VENDOR shall request and receive written approval prior to performing any extra work. Any work beyond that reflected in the approved Scope of Services shall not be compensated by CITY unless prior written approval was provided under this paragraph. To the extent that Exhibit A is a proposal from VENDOR, such proposal is incorporated only for the description of the Scope of Services and no other terms and conditions from any such proposal shall apply to this AGREEMENT unless specifically agreed to by CITY in writing.
II. TERM
Unless earlier terminated in accordance with Section IV below, or unless the Scope of Services are substantially completed, the AGREEMENT will continue in full force and effect from the Effective Date through December 31, 2025. Upon mutual written agreement, the term of this AGREEMENT can be extended annually under the same terms for an additional one (1) year period, or longer as the parties agree in writing.
III. COMPENSATION
A. VENDOR’s Fee
For services rendered pursuant to this AGREEMENT, VENDOR will be paid in accordance with the Compensation Schedule attached hereto as Exhibit B. However, in no event will the total amount of money paid VENDOR, for services initially contemplated by this AGREEMENT and associated expenses, exceed the sum of two hundred seventy-six thousand four hundred thirty dollars ($276,430), unless otherwise first approved in writing by CITY. Should this AGREEMENT be extended pursuant to Section II, VENDOR’s fee may be adjusted upon the written agreement of the parties, in the form of an amendment to this AGREEMENT.
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B. Schedule of Payment
VENDOR will submit invoices monthly for actual services performed and associated expenses.
Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If CITY disputes any of VENDOR’s fees it shall give written notice to VENDOR within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. Any final payment under this AGREEMENT shall be made within forty-five (45) days of receipt of an invoice therefor.
IV. TERMINATION OF AGREEMENT
A. CITY may at any time, for any reason, with or without cause, suspend or terminate this AGREEMENT, or any portion hereof, by serving upon VENDOR at least ten (10) days' prior written notice. Upon receipt of said notice, VENDOR shall immediately cease all work under this AGREEMENT, unless the notice provides otherwise. If CITY suspends or terminates a portion of this AGREEMENT, such suspension or termination shall not make void or invalidate the remainder of this AGREEMENT.
B. In the event this AGREEMENT is terminated pursuant to this Section, CITY shall pay to VENDOR the actual value of the work performed up to the time of termination, provided that the work performed is of value to CITY. Upon termination of the AGREEMENT pursuant to this Section, VENDOR will submit an invoice to CITY pursuant to Section III.
V. FORCE MAJEURE
If any party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, "acts of God," inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental control, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused for a period equal to the period of such cause for failure to perform.
VI. RETENTION OF FUNDS
VENDOR authorizes CITY to deduct from any amount payable to VENDOR (whether or not arising out of this AGREEMENT) any amounts the payment of which may be in dispute or that are necessary to compensate CITY for any losses, costs, liabilities, or damages suffered by CITY, and all amounts for which CITY may be liable to third parties, by reason of VENDOR’s acts or omissions in performing or failing to perform VENDOR’s obligations under this AGREEMENT. In the event that any claim is made by a third party, the amount or validity of which is disputed by VENDOR, or any indebtedness exists that appears to be the basis for a claim of lien, CITY may withhold from any payment due, without liability for interest because of the withholding, an amount sufficient to cover the claim. The failure of CITY to exercise the right to deduct or to withhold will not, however, affect the obligations of VENDOR to insure, indemnify, and protect CITY as elsewhere provided in this AGREEMENT.
VII. CITY REPRESENTATIVE
The Engineering Manager is designated as the “City Representative,” authorized to act in its behalf with respect to the work and services specified in this AGREEMENT and to make all decisions in connection with this AGREEMENT. Whenever approval, directions, or other actions are required by CITY under this AGREEMENT, those actions will be taken by CITY Representative, unless otherwise Council Agenda 7-16-2024 9.I-6
Attachment 2
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stated. CITY’s City Manager has the right to designate another CITY Representative at any time, by providing notice to VENDOR.
VIII. VENDOR REPRESENTATIVE(S)
The person(s) employed by VENDOR whose name(s) are set forth immediately following the signatures of the parties executing this AGREEMENT are designated as being the representative(s) of VENDOR authorized to act on its behalf with respect to the work specified in this AGREEMENT and make all decisions in connection with this AGREEMENT.
IX. INDEPENDENT CONTRACTOR
VENDOR is, and at all times will remain as to CITY, a wholly independent contractor. Neither CITY nor any of its elected officials, officers, employees or agents will have control over the conduct of VENDOR or any of VENDOR’s employees, except as otherwise set forth in this AGREEMENT and then only as to the results to be accomplished and not the method by which VENDOR provides the Scope of Services. VENDOR may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of CITY.
X.BUSINESS LICENSE
VENDOR must obtain a CITY business license prior to the start of work under this AGREEMENT, unless VENDOR is qualified for an exemption.
XI. OTHER LICENSES AND PERMITS
VENDOR warrants that it has all professional, contracting and other permits and licenses required to undertake the work contemplated by this AGREEMENT.
XII. VENDOR’S ACCOUNTING RECORDS; OTHER PROJECT RECORDS A. VENDOR shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by CITY that relate to the performance of services under this AGREEMENT. VENDOR shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services.
B. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. VENDOR shall provide free access to the representatives of CITY or its designees at reasonable times to such books and records; shall give CITY the right to examine and audit said books and records; shall permit CITY to make transcripts or copies therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this AGREEMENT. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. Upon completion of, or in the event of termination or suspension of this AGREEMENT, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this AGREEMENT shall become the sole property of CITY and may be used, reused, or otherwise disposed of by CITY without the permission of VENDOR. With respect to computer files, VENDOR shall make available to CITY, at VENDOR's office and upon reasonable written request by CITY, the necessary computer software and hardware for purposes of accessing, compiling, transferring, copying and/or printing computer files. VENDOR hereby grants to CITY all right, title, and interest, including 4 of 12
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any copyright, in and to the documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared by VENDOR in the course of providing the services under this AGREEMENT.
C. All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of CITY, whether the work for which they are made be executed or not. In the event this AGREEMENT is terminated, and at the end of the term of this AGREEMENT, all such plans, studies, sketches, drawings, electronic documentation, reports, and specifications shall be delivered immediately to CITY. VENDOR may retain one copy of each document for VENDOR’S records, but shall have no proprietary rights to them. CITY agrees to indemnify VENDOR against any damages caused by the unauthorized re-use of said documents.
XIII.INDEMNIFICATION
A.Non-design, non-construction Professional Services:
To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), VENDOR shall indemnify, defend, and hold harmless CITY, and its elected officials, officers, employees, volunteers, and agents (“CITY Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of VENDOR’s performance or VENDOR’s failure to perform its obligations under this AGREEMENT or out of the operations conducted by VENDOR, including CITY’s active or passive negligence, except for such loss or damage arising from the sole negligence or willful misconduct of CITY. In the event CITY Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from VENDOR’s performance of this AGREEMENT, VENDOR shall provide a defense to CITY Indemnitees or at CITY’s option, reimburse CITY Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims.
B.Non-design, construction Professional Services:
To the extent the Scope of Services involve a “construction contract” as that phrase is used in Civil Code Section 2783, this paragraph shall apply in place of paragraph A. To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), VENDOR shall indemnify, defend, and hold harmless the CITY, and its elected officials, officers, employees, volunteers, and agents (“CITY Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of VENDOR’s performance or VENDOR’s failure to perform its obligations under this AGREEMENT or out of the operations conducted by VENDOR, except for such loss or damage arising from the active negligence, sole negligence or willful misconduct of CITY. In the event CITY Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from VENDOR’s performance of this AGREEMENT, VENDOR shall provide a defense to CITY Indemnitees or at CITY’s option, reimburse CITY Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims.
C.Design Professional Services:
In the event VENDOR is a "design professional," and the Scope of Services require VENDOR to provide “design professional services” as those phrases are used in Civil Code Section 2782.8, this paragraph shall apply in place of paragraphs A or B. To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8) VENDOR shall indemnify, defend and hold harmless CITY and its elected officials, officers, employees, volunteers and agents (“City Indemnitees”), from and against all claims, damages, Council Agenda 7-16-2024 9.I-7
Attachment 2
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injuries, losses, and expenses including costs, attorney fees, expert consultant and expert witness fees arising out of, pertaining to or relating to, the negligence, recklessness or willful misconduct of VENDOR, except to the extent caused by the sole negligence, active negligence or willful misconduct of CITY. Negligence, recklessness or willful misconduct of any subcontractor employed by VENDOR shall be conclusively deemed to be the negligence, recklessness or willful misconduct of VENDOR unless adequately corrected by VENDOR. In the event CITY Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from VENDOR’s performance of this AGREEMENT, VENDOR shall provide a defense to CITY Indemnitees or at CITY’s option, reimburse CITY Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims. In no event shall the cost to defend charged to VENDOR under this paragraph exceed VENDOR’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, VENDOR shall meet and confer with other parties regarding unpaid defense costs.
D. Payment by CITY is not a condition precedent to enforcement of the indemnities in paragraph A, B, or C. In the event of any dispute between VENDOR and CITY, as to whether liability arises from the active negligence, sole negligence or willful misconduct of CITY or its officers, employees, or agents, VENDOR will be obligated to pay for CITY’s defense until such time as a final judgment has been entered adjudicating CITY as having been actively negligent, solely negligent or as having engaged in willful misconduct. Except as otherwise required by Civil Code Section 2782.8, VENDOR will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees and costs of litigation. The provisions of this Section 13 shall survive completion of VENDOR’s services or the termination of this AGREEMENT.
XIV. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES
No elected official, officer, employee, or agent of CITY will be personally liable to VENDOR, in the event of any default or breach by CITY or for any amount that may become due to VENDOR.
XV.INSURANCE
A.Without limiting VENDOR’s indemnification of CITY, and prior to commencement of the Scope of Services, VENDOR shall obtain, provide and maintain at its own expense during the term of this AGREEMENT, policies of insurance of the type and amounts described below and in a form that is satisfactory to CITY.
1. General liability insurance. VENDOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office (ISO) 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 property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
2. Automobile liability insurance. If VENDOR owns vehicles used in performing the Scope of Services in any manner, VENDOR shall maintain automobile insurance at least as broad as Insurance Services Office (ISO) form CA 00 01 covering bodily injury and property damage for all activities of VENDOR arising out of or in connection with any work to be performed under this AGREEMENT, including coverage for any owned, 6 of 12
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hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
3. Workers’ compensation insurance. VENDOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000), as required by law.
4. VENDOR shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees, and volunteers.
5. Errors and Omissions/Professional Liability. VENDOR shall maintain a policy of professional liability insurance written on a claims-made basis in an amount not less than $1,000,000. VENDOR shall also procure and pay for appropriate tail coverage for a minimum of three years following completion of the Scope of Services to cover any errors or omissions occurring during the Term. In the alternative, VENDOR may elect to obtain equivalent coverage on an occurrence basis. CITY’s Risk Manager or City Attorney may waive the requirement of professional liability insurance if he/she determines that such a policy is not commercially available to VENDOR. If such a policy is commercially available, additional cost to VENDOR in obtaining such a policy shall not be a basis upon which the insurance requirement will be waived.
B. Other provisions or requirements:
1. Proof of insurance. VENDOR shall provide certificates of insurance to CITY as evidence of the insurance coverage required 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 certification of insurance shall be kept on file with CITY at all times during the term of this contract. CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements to such policies, at any time.
2. Duration of coverage. VENDOR shall procure and maintain for the duration of the AGREEMENT insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by VENDOR, its agents, representatives, employees, or subconsultants.
3. Primary/noncontributing. Coverage provided by VENDOR 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 herein 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 provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY before CITY’s own insurance or self-insurance shall be called upon to protect it as a named insured.
4. CITY’s rights of enforcement. In the event any policy of insurance required under this AGREEMENT does not comply with these specifications or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by VENDOR or CITY will withhold amounts sufficient to pay premium from VENDOR payments. In the alternative, CITY may terminate this AGREEMENT as provided in paragraph IV.
5. Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an Council Agenda 7-16-2024 9.I-8
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assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by CITY’s Risk Manager.
6. Waiver of subrogation. All insurance coverage maintained or procured pursuant to this AGREEMENT shall be endorsed to waive subrogation against CITY, its elected or appointed officials, agents, officers, employees, and volunteers or shall specifically allow VENDOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. VENDOR hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
7. Enforcement of contract provisions (non-estoppel). VENDOR acknowledges and agrees that any actual or alleged failure on the part of CITY to inform VENDOR of non- compliance with any requirement imposes no additional obligations on CITY nor does it waive any rights hereunder.
8. Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits 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 intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If VENDOR maintains higher limits than the minimums shown above, CITY requires and shall be entitled to coverage for the higher limits maintained by VENDOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CITY.
9. Notice of cancellation. VENDOR 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 coverage for each required coverage. In the event VENDOR’s policy of insurance cannot be endorsed to provide this notice of cancellation, VENDOR shall provide CITY notice of such cancellation, in writing, not later than 24 hours following the effective time of such cancellation.
10. Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Each such insurance policy shall contain language substantially similar to the following clause:
"The City of Pismo Beach, its elected and appointed officials, officers, employees, and agents are named as additional insureds as respects operations of the named insured performed under contract with the City of Pismo Beach." CITY need not be named as an additional insured on professional liability insurance policies.
11. Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing by CITY’s Risk Manager or City Attorney.
12. Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that VENDOR’s insurance shall apply separately to each insured
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against whom claim 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.
13. Pass-through clause. VENDOR agrees to ensure that its sub-consultants, sub- contractors, and any other party providing any work under the Scope of Services under the direction of VENDOR, provide the same minimum insurance coverage and endorsements required of VENDOR. VENDOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. VENDOR agrees that upon request, all AGREEMENTS with consultants, subcontractors, and others engaged in performing work under the Scope of Services will be submitted to CITY for review.
14. CITY’s right to revise specifications. CITY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving VENDOR ninety (90) days' advance written notice of such change. If such change results in substantial additional cost to VENDOR, CITY and VENDOR may renegotiate VENDOR’s compensation.
15. 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.
16. Timely notice of claims. VENDOR shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from VENDOR’s performance under this AGREEMENT, and that involve or may involve coverage under any of the required liability policies.
17. Additional insurance. VENDOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Scope of Services.
XVI. SUBCONTRACTORS
Before VENDOR retains or hires a subcontractor to provide any work, labor, or services relative to this AGREEMENT, VENDOR must:
A. Present the name and identifying information of the subcontractor that will provide any work, labor, or services to CITY;
B. Present to CITY the form of subcontract that will be used with the subcontractor for CITY’s approval, which approval will not be unreasonably withheld. Such subcontract agreement must include an indemnity agreement that is generally in accord with the indemnity obligations contained in paragraph XII of this AGREEMENT and must specifically name CITY as an indemnified party; and
C. Secure from the subcontractor evidence of insurance coverage that meets with this AGREEMENT including naming CITY as an additional insured as required by this AGREEMENT, unless such requirement is waived in writing by CITY's Risk Manager as provided in paragraph XXV below.
Council Agenda 7-16-2024 9.I-9
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XVII. CONFLICT OF INTEREST
No officer or employee of CITY may have any financial interest, direct or indirect, in this AGREEMENT, nor may any officer or employee participate in any decision relating to the AGREEMENT that affects the officer or employee’s financial interest or the financial interest of any corporation, partnership, or association in which the officer or employee is directly or indirectly interested, in violation of any law, rule or regulation.
No person may offer, give, or agree to give any officer or employee or former officer or employee, nor may any officer or employee solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation or any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any way pertaining to any program requirement, contract or subcontract, or to any solicitation or proposal.
XVIII. NOTICE
All notices, requests, demands, or other communications under this AGREEMENT will be in writing.
Notice will be sufficiently given for all purposes as follows:
A. Personal delivery. When personally delivered to the recipient; notice is effective on delivery.
B. First Class mail. When mailed first class to the last address of the recipient known to the party giving notice; notice is effective three mail delivery days after deposit in a United States Postal Service office or mailbox.
C. Certified mail. When mailed certified mail, return receipt requested; notice is effective on receipt, if delivery is confirmed by a return receipt.
D. Overnight delivery. When delivered by an overnight delivery service, charges prepaid or charged to the sender’s account; notice is effective on delivery, if delivery is confirmed by the delivery service.
E. Facsimile transmission. When sent by fax to the last fax number of the recipient known to the party giving notice; notice is effective on receipt. Any notice given by fax will be deemed received on the next business day if it is received after 5:00 p.m. (recipient’s time) or on a non- business day.
Addresses for purpose of giving notice are as set forth immediately following the signatures of the parties executing this AGREEMENT.
F. Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified, will be deemed effective as of the first date the notice was refused, unclaimed or deemed undeliverable by the postal authorities, messenger or overnight delivery service.
G. Either party may change its address or fax number by giving the other party notice of the change in any manner permitted by this AGREEMENT. Any change in address or fax number that is not provided to the other party will not void delivery of any notice under this AGREEMENT, and delivery to the last known address or fax number shall be deemed sufficient for notice under this AGREEMENT.
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XIX. PROHIBITION AGAINST ASSIGNMENT AND SUBCONTRACTING
This AGREEMENT and all exhibits are binding on the heirs, successors, and assigns of the parties.
The AGREEMENT may not be assigned or subcontracted by either CITY or VENDOR without the prior written consent of the other.
XX. INTERPRETATION
The terms of this AGREEMENT shall be construed in accordance 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 that might otherwise apply.
XXI. SEVERABILITY
If any part of this AGREEMENT is found to be in conflict with applicable laws, that part will be inoperative, null and void insofar as it is in conflict with any applicable laws, but the remainder of the AGREEMENT will remain in full force and effect.
XXII. TIME OF ESSENCE
Time is of the essence in the performance of this AGREEMENT.
XXIII. GOVERNING LAW; JURISDICTION
This AGREEMENT will be administered and interpreted under the laws of the State of California.
Jurisdiction of and venue for any litigation arising from the AGREEMENT will be in the Superior Court of the San Luis Obispo County, or in the United States District Court for the Central District of California.
XXIV. COMPLIANCE WITH STATUTES AND REGULATIONS
VENDOR will be knowledgeable of and will comply with all applicable federal, state, county and city statutes, rules, regulations, ordinances and orders. VENDOR and its subcontractor(s) shall not discriminate against any person in the performance of this AGREEMENT on the basis of race, religion, national origin, color, age, sex, sexual orientation, AIDS, HIV status, disability, or any other basis protected by state or federal law, and shall comply with applicable federal and state equal employment opportunity laws, ordinances, rules and regulations.
XXV. WAIVER OF BREACH
No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default will impair the right or remedy or be construed as a waiver. A party’s consent or approval of any act by the other party requiring the party’s consent or approval will not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and will not be a waiver of any other default concerning the same or any other provision of this AGREEMENT.
XXVI. ATTORNEY’S FEES
Except as provided for in paragraph XV, in any dispute, litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this AGREEMENT (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this AGREEMENT, the prevailing party Council Agenda 7-16-2024 9.I-10
Attachment 2
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Vendor Agreement (Rev. 2/2/2018)
will be awarded reasonable attorney’s fees, together with any costs and expenses, to resolve the dispute and to enforce any judgment, including post judgment attorney’s fees costs and expenses and any attorneys’ fees or costs incurred on appeal of any judgment.
XXVII. EXHIBITS
All exhibits identified in this AGREEMENT are incorporated into the AGREEMENT by this reference.
In the event of any conflict between the terms of this AGREEMENT and the terms of an exhibit, the terms of this AGREEMENT shall control. Notwithstanding the foregoing sentence, the provisions of Section XIII of this AGREEMENT shall not be altered, amended, limited or otherwise affected in any manner by any language included in an exhibit to this AGREEMENT, even if such exhibit purports to affect the provisions of Section XIII.
XXVIII. VENDOR’S AUTHORITY TO EXECUTE
The persons executing this AGREEMENT on behalf of the VENDOR warrant that:
A. the VENDOR is duly organized and existing under the appropriate State laws; B. they are duly authorized to execute this AGREEMENT on behalf of the VENDOR; C. by so executing this AGREEMENT, the VENDOR is formally bound to the provisions of this AGREEMENT; and
D. entering into this AGREEMENT does not violate any provision of any other AGREEMENT to which the VENDOR is bound.
XXIX. INTEGRATION; AMENDMENT
This AGREEMENT represents the entire understanding of CITY and VENDOR as to those matters contained in it. No prior oral or written understanding will be of any force or effect with respect to the terms of this AGREEMENT. The AGREEMENT may not be modified or altered except in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed the day and year last written below.
Signatures begin on next page.
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Vendor Agreement (Rev. 2/2/2018)
CITY:
City of Pismo Beach, a Municipal Corporation
Signed:
Name: Benjamin A. Fine, P.E.
Title: Director of Public Works/City Engineer
Dated: ________________________________
Signed:
Name: Jorge E. Garcia
Title: City Manager
Dated: ________________________________
Address for giving notice (See Section XVIII):
760 Mattie Road, Pismo Beach, CA 93449
ATTEST:
Signed:
Name: Erica Inderlied
Title: City Clerk
APPROVED AS TO FORM:
Signed:
Name: David M. Fleishman
Title: City Attorney
VENDOR:
Earth Systems Pacific
Signed:
Name: ________________________________
Title: _________________________________
Dated: ________________________________
Address for giving notice (See Section XVIII):
______________________________________
______________________________________
Email address for official communications:
______________________________________
Vendor Representative (See Section VIII):
Name/Title: ____________________________
Attachments:
Exhibit A: Scope of Service
Exhibit B: Compensation Schedule
Council Agenda 7-16-2024 9.I-11
Attachment 2
June 12, 2024
Mr. Eric Eldridge
City of Pismo Beach
760 Mattie Road
Pismo Beach, CA 93449
PROJECT: PUBLIC SAFETY FACILITY
1000 BELLO STREET
PISMO BEACH, CALIFORNIA
SUBJECT: Proposal for Special Inspection and Materials Testing Services Dear Mr. Eldridge:
As requested, we have prepared this proposal for special inspection and Materials Testing services during construction of the Pismo Beach Public Safety Facility. As shown in the project plans, the project will consist of constructing a new Police Department building, a renovation to the Fire Station, and a new Vehicle Storage building. The new structures are supported on Mat- slab foundations. The Police department is a structural steel building while the renovation is primarily conventional wood/light gauge steel framing. Additional improvements will consist of a Portland cement concrete (PCC) and hot mix asphalt (HMA) pavement, exterior pedestrian flatwork, underground utilities, and landscaping.
SCOPE OF SERVICES AND ESTIMATE OF FEES
This proposed scope of work is for materials testing and special inspection during construction of the planned improvements. The purpose of the special inspection services is to verify compliance with the project plans and specification. Based upon our understanding of the project, we have assumed that the following services will be necessary:
x Special Inspection and compaction testing during rough and fine grading operations x Compaction testing during trench backfill
x Foundation excavation observation
x Special inspection during concrete construction
x Post-installed anchor special inspection
x Special inspection during shop and field welding
x Special inspection during high-strength bolting
x Project management and report preparation
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Public Safety Facility 2 June 12, 2024
Pismo Beach, California
Grading special inspection and compaction testing will be provided during grading for the buildings and parking lot areas, on-site and public improvement utility trench backfill, pedestrian flatwork areas, retaining wall backfill, and other planned on-site and off-site improvements.
Foundation excavation observation will be performed for the building and site retaining walls to be supported by conventional foundations. Concrete special inspection services will be provided during the construction of the foundations, building retaining walls, and structural slabs. Shop and field welding, as well as high strength bolting special inspections will be performed for the structural steel framing. Inspection of post-installed anchors will be provided, where needed.
Engineering oversight, project management, and report preparation associated with these services will also be provided. We have assumed that we will be required to attend one pre- construction site meeting for the project and preparatory meetings for the major work elements, i.e. grading, concrete, and structural welding. We have assumed the Corebrace manufactured brace frames will not require special inspection from this firm. However, shop welding inspection has been included. Since the location of the fabricator is unknown at this time, we have assumed the fabricator is within San Luis Obispo County. We have also assumed the Inspector of Record will perform shear wall inspections as well as other typical building and piping inspections.
The total number of site visits within each inspection category have been estimated based upon our assumed duration of each construction task based upon our review of the project plans and details and experience on similar projects in the region; a detailed schedule was not available while preparing this estimate. Because this proposal was created based upon our estimated time frame for construction durations, it is important to review the assumed time frames and confirm they meet the project durations. We understand that the project is scheduled to begin in June 2024 and is expected to be completed by November 2025.
Our anticipated scope of services, including our estimated durations are as follows:
I. Grading Observation and Compaction Testing. We propose to provide special inspection of rough grading for the building pads, and compaction testing during rough and fine grading, trench backfill, and wall backfill. Observation of shallow foundation excavations is also planned. We have estimated rough grading operations to have a one-month duration. During this time, we have included an average of 6 hours per day. We have estimated utility installation including will require 26 days for testing with an average of 4 hours per day. We have estimated another 34 days for fine grading and wall backfill, also with an average of 4 hours per day. In-place densities and moisture contents will be determined using nuclear test methods (ASTM D 6938). Laboratory maximum dry density tests (ASTM D 1557) will be used to determine percent relative compaction. We have assumed eight different materials will be utilized as compacted fill, wall backfill, aggregate base, and utility trench backfill. We have assumed that compaction testing of hot mix asphalt will not be required. We have included periodic site visits by the supervising engineer during mass grading operations as well as oversight of the grading observation.
Council Agenda 7-16-2024 9.I-12
Attachment 2
Public Safety Facility 3 June 12, 2024
Pismo Beach, California
II. Concrete Special Inspection, Sampling and Testing. We have included concrete special inspection and sampling for the structural concrete including the foundations, structural slab, concrete decks, and retaining walls. As part the concrete inspection, we will perform inspection of the reinforcement prior to the concrete placement. The time required for the reinforcement inspection will depend upon the amount of reinforcing to be inspected; we have assumed 4-hour inspections for smaller concrete placements like elevator pits and retaining walls and multiple days of inspection for larger foundation placements. We have included concrete inspections at 4- and 8-hour increments, depending upon what is being constructed.
We have included sampling and compressive strength testing of one set of concrete cylinders per 150 cubic yards with a minimum of one set per day. One set of concrete cylinders is considered five 4x8 cylinders. Our staff on site will return the previous day’s cylinders to the lab when available, but we have included pickup and delivery of the cylinders on sixteen occasions during the week and six occasions on Saturdays for Friday concrete placements. We have assumed that a concrete mix design and aggregate tests will be provided by the supplier. We have assumed that cement tests will not be required and that the concrete mix designs, cement, and aggregates will be accepted by the architect/engineer based on the manufacturer’s certifications.
We have also included inspection during installation of post installed anchors which is detailed for the Fire Station and common for a project of this type and size. We have estimated twenty inspections will be required with an average of 4 hours per inspection.
III. Shop and Field Welding and Bolting Special Inspection. We have included special inspection of shop welding fabrication for the structural steel columns and beams. We have assumed 40 days of inspections with an average of 8 hours per inspection. Further, we have assumed all the shop fabrication will occur in San Luis Obispo County. If the shop fabrication occurs elsewhere, additional fees will be required to provide the inspection. Once the fabricator, or fabricators, is/are known, a more specific estimate can be provided. Special inspection of field welding and high strength bolting has also been included. We have assumed 24 days of inspection at an average of 6 hours per day. We have assumed tension control bolts or load indicating washers will be utilized.
IV. Project Management and Report Preparation. We have assumed typical project management and oversight of the special inspection. We have assumed that special inspector or project manager attendance at weekly project meetings will not be required.
We have assumed our special inspection services will occur over a duration of 50 weeks.
We have also included preparation of monthly grading reports including testing location maps.
Public Safety Facility 4 June 12, 2024
Pismo Beach, California
We have attached the Special Inspection and Materials Testing Fee Breakdown Worksheet for a detailed breakdown of the estimated fees associated with the scope detailed above. As stated previously, these estimates were generated based upon our assumptions related to the construction time frames associated with each scope section. Therefore, they should not be construed as maximums for any line item or the estimated total, rather a summary of our assumptions to determine our estimated fee for materials testing and special inspection services of $276,430.00.
CONDITIONS
The conditions of this proposal will remain in effect for a period of 120 days from the date of issue. Our technicians and inspectors will attempt, wherever practicable, to combine inspections or test multiple areas during site visits, in order to keep the final bill as low as reasonable.
However, as the presence of our personnel at the site will depend upon the contractor’s schedule and the progress of the work, the fees presented above are to be considered as estimates only and shall not be construed as guaranteed maximum fees. The invoices will reflect the time spent and services performed and may be greater or less than the estimated amounts.
This estimate is based on services provided during regular working hours (0700 to 1700), Monday through Friday. Services provided between 1700 and 0700 on Monday through Friday, and all- day Saturday, will be subject to an overtime rate at 1.5 times the regular rate. Services provided on Sundays and Holidays will be subject to a double time rate of 2.0 times the regular rate. All field inspections and visits will be subject to a 2-hour minimum charge, billed in 1-hour increments. Fees for laboratory tests include completion under a normal turnaround schedule; rush laboratory work will be subject to rush charges of 1.5 to 2.0 the stated fee depending upon the time frame required. The estimate does not include charges for services beyond what has been specifically noted above. Any services not listed herein will be charged in accordance with Earth Systems Pacific’s fee schedule in effect at the time of the service.
When testing services are required, this firm should be contacted a minimum of 24 hours in advance by the client or whom the client designates the responsibility for contacting this firm.
Our dispatch phone number is 805-544-3276 ext. 1. The client or client’s agent is to supply latest plans and specifications and notify us of any changes pertinent to the performance of testing and observations. Previously failed areas may be retested or reinspected after rework, if required.
Charges for retests or reinspection’s due to failing results or improper work, or when tests or inspections are requested but the contractor is not ready and does not cancel scheduled testing the day before will be billed at the hourly rates listed previously. This firm shall not be responsible for back charging contractors for retests or reinspection’s.
Council Agenda 7-16-2024 9.I-13
Attachment 2
Public Safety Facility 5 June 12, 2024
Pismo Beach, California
Routine project management has been included in the above estimate. However, please note that the above estimate does not include charges for additional meetings, plan reviews, site visits to address unforeseen problems, or other such services. Fees for such services will be charged at the Fee Schedule rates in effect at the time of the services request.
If the client finds the scope of work, terms, and estimated fees satisfactory, the return of a purchase order will constitute authorization for work to begin. This agreement can be terminated by either party upon notification in writing. Earth Systems Pacific’s responsibility for the project will end upon completion of the services described herein or termination of the agreement, unless authorization to perform additional work and agreement for payment thereof is provided by the client.
Based upon our current workload, the lead engineer will be the undersigned for the stated services. Thank you for your consideration of our firm for this project. If you have any questions or require additional information, please contact me at your convenience.
Sincerely,
Earth Systems Pacific
Robert Down, PE 70206
Senior Vice President
Attachments: Accounts Payable Information Request Form
Estimate Worksheet
Doc. No.: SLO-2406-030.PRP/pm
Earth Systems Fee Breakdown
PROJECT:
DATE:
Hours/Units Rate Total
Senior Management/Quality Control 50 $230.00 $11,500.00 Project Management 200 $175.00 $35,000.00
Grading Observation and Testing - 2024 344 $145.00 $49,880.00 Special Inspection - 2024 224 $150.00 $33,600.00
Grading Observation and Testing -2025 136 $150.00 $20,400.00 Special Inspection -2025 560 $155.00 $86,800.00
Reporting and Document Posting 100 $125.00 $12,500.00
Compaction Tests (per test)300 $10.00 $3,000.00
Mileage (per trip)200 $21.25 $4,250.00
Laboratory Testing - Per Fee Schedule (Allotment) $15,000.00 DIR/ECPR Posting 50 $90.00 $4,500.00
$276,430.00ESTIMATED TOTAL
City of Pismo Beach - Public Safety Facility
June 11, 2024
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Council Agenda 7-16-2024 9.I-14
Attachment 2