HomeMy WebLinkAboutC-6138 - PSA for Ultrasonic Streetlight Pole TestingTHIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 22nd day of March, 2018
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and P.E.M. EVANS, INC., a California
corporation ("Consultant"), whose address is 11660 Western Avenue, Stanton, California
90680, and is made with reference to the following:
RECITALS
A. On April 13, 2015, City and Consultant entered into a Professional Services
Agreement ("Agreement") for Ultrasonic streetlight pole testing of the streetlight
poles in and around Fashion Island ("Project").
B. The parties desire to enter into this Amendment No. One to reflect additional
Services not included in the Agreement, to extend the term of the Agreement to
April 2, 2020, to increase the total compensation, and to update the following
provisions of the Agreement: Standard of Care, Notices, Claims, and Prevailing
Wages.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on April 2, 2020, unless terminated earlier as set forth herein."
2. SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of
Services, attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Exhibit A to the Agreement and Exhibit A to this Amendment No One shall
collectively be known as "Exhibit A." The City may elect to delete certain Services within
the Scope of Services at its sole discretion.
3. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be amended in its entirety and replaced with the
Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by
reference ("Services" or "Work").
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AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT
WITH P.E.M. EVANS, INC. FOR
ULTRASONIC STREETLIGHT POLE TESTING
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 22nd day of March, 2018
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and P.E.M. EVANS, INC., a California
corporation ("Consultant"), whose address is 11660 Western Avenue, Stanton, California
90680, and is made with reference to the following:
RECITALS
A. On April 13, 2015, City and Consultant entered into a Professional Services
Agreement ("Agreement") for Ultrasonic streetlight pole testing of the streetlight
poles in and around Fashion Island ("Project").
B. The parties desire to enter into this Amendment No. One to reflect additional
Services not included in the Agreement, to extend the term of the Agreement to
April 2, 2020, to increase the total compensation, and to update the following
provisions of the Agreement: Standard of Care, Notices, Claims, and Prevailing
Wages.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on April 2, 2020, unless terminated earlier as set forth herein."
2. SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of
Services, attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Exhibit A to the Agreement and Exhibit A to this Amendment No One shall
collectively be known as "Exhibit A." The City may elect to delete certain Services within
the Scope of Services at its sole discretion.
3. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be amended in its entirety and replaced with the
Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by
reference ("Services" or "Work").
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Hundred Twenty
Thousand Dollars and 00/100 ($120,000.00), without prior written authorization from
City. No billing rate changes shall be made during the term of this Agreement without the
prior written approval of City."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed Sixty
Thousand Dollars and 00/100 ($60,000.00).
4. STANDARD OF CARE
Section 8 of the Agreement is amended in its entirety and replaced with the
following:
"8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies."
5. NOTICES
Section 25 of the Agreement is amended in its entirety and replaced with the
following:
P.E.M. Evans, Inc. Amendment No. One Page 2
"25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Utilities Manager
Municipal Operations Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: David Thompson
P.E.M. Evans, Inc.
11660 Western Avenue
Stanton. CA 90680"
6. CLAIMS
Section 26 of the Agreement is amended in its entirety and replaced with the
following:
"26.1 Unless a shorter time is specified elsewhere in this Agreement, before
making its final request for payment under this Agreement, Consultant shall submit to
City, in writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
26.2 To the extent that Consultant's claim is a "Claim" as defined in Public
Contract Code section 9204 or any successor statute thereto, the Parties agree to follow
the dispute resolution process set forth therein. Any part of such "Claim" remaining in
dispute after completion of the dispute resolution process provided for in Public Contract
Code section 9204 or any successor statute thereto shall be subject to the Government
Claims Act requirements requiring Consultant to file a claim in strict conformance with the
Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim"
P.E.M. Evans, Inc. Amendment No. One Page 3
as defined in Public Contract Code section 9204 or any successor statute thereto,
Consultant shall be required to file such claim with the City in strict conformance with the
Government Claims Act (Government Code sections 900 et seq.)."
PREVAILING WAGES
Section 28 of the Agreement is amended in its entirety and replaced with the
following:
"28.1 Pursuant to the applicable provisions of the Labor Code of the State of
California, not less than the general prevailing rate of per diem wages including legal
holidays and overtime Work for each craft or type of workman needed to execute the
Work contemplated under the Agreement shall be paid to all workmen employed on the
Work to be done according to the Agreement by the Consultant and any subcontractor.
In accordance with the California Labor Code (Sections 1770 et seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and requesting
one from the Department of Industrial Relations. The Consultant is required to obtain the
wage determinations from the Department of Industrial Relations and post at the job site
the prevailing rate or per diem wages. It shall be the obligation of the Consultant or any
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
28.2 Unless otherwise exempt by law, Consultant warrants that no contractor or
subcontractor was listed on the bid proposal for the Services that it is not currently
registered and qualified to perform public work. Consultant further warrants that it is
currently registered and qualified to perform "public work" pursuant to California Labor
Code section 1725.5 or any successor statute thereto and that no contractor or
subcontractor will engage in the performance of the Services unless currently registered
and qualified to perform public work."
8. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
P.E.M. Evans, Inc. Amendment No. One Page 4
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATT RNEY'S OFFICE a California municipal corporation
Date: Date: U\NN2A\e
By: By:-c`��
Aaron C. Harp KMA) 3•22'ta Dav ff
City Attorney City Manger
ATTEST: CONSULTANT: P.E.M. Evans, Inc., a
Date: California corporatin
Date: q 1 I 1 \q,
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By:jo,/,Uel,, 4
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Cil CIerK
Attachments:
By. A
David Th
Vice Pre:
Date
Befit of Operations
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By: .C3Ck/9/*:1-)
Carol Evans
Secretary
[END OF SIGNATURES]
Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
P.E.M. Evans, Inc. Amendment No. One Page 5
EXHIBIT A
SCOPE OF SERVICES
• DESCRIPTION OF PROJECT
o Consultant shall furnish all labor, tools, expendable equipment, materials,
transportation services necessary for the annual ultrasonic streetlight pole
testing as described herein including, but not limited to, the following:
• Annual testing of approximately thirty (30) metal flagpoles located
throughout the City.
• Additional testing as required and approved by City.
• INSPECTION AND REPORTING REQUIREMENTS
o Consultant shall inventory information in the inspection report for each
structure, which shall include, at a minimum: location; diameter and
thickness of the pole; connection type; and length, diameter and thickness
of mast arm, if present; and Street Light Control ("SLC') number.
• In any identification pictures, please make sure to include the SLC
number as well.
P.E.M. Evans, Inc. Amendment No. One Page A-1
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EXHIBIT B
SCHEDULE OF BILLING RATES
P.E.M. Evans, Inc. Amendment No. One Page B-1
Billing Rates
Annual Fashion Island Streetlight Pole Testing
Materials and Labor Pricing
QTY
Per
Material Total
230
230
$38
Streetlight Pole Ultra- $8740
Sonic Inspections
Annual Metal Flag Pole Testing
Materials and Labor Pricing
QTY
Per Pole Material
Total
30
$75 Metal Flag Pole Ultra -
Sonic Inspections
1f
$2250
Per Unit Pricing for Additional Poles or Additional Testing Per Pole
QTY
Per Pole
Material
1
$75
Metal Flag Pole Ultra-
sonic Inspections
1
$38
Streetlight Pole Ultra-
Sonlc Inspections
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PROFESSIONAL SERVICES AGREEMENT
WITH P.E.M. EVANS, INC. FOR
ULTRASONIC STREETLIGHT POLE TESTING
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement') is made and
entered into as of this 13th day of April, 2015 ( "Effective Date "), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
( "City "), and P.E.M. EVANS, INC., a California corporation ( "Consultant'), whose
address is 3621 Serpentine Drive, Los Alamitos, CA 90720, and is made with reference
to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to Ultrasonic streetlight pole testing of the
streetlight poles in and around Fashion Island. (`Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on April 2, 2018, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ( "Services"
or "Work "). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
33 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Sixty
Thousand Dollars and 00/100 ($60,000.00), without prior written authorization from
City. No billing rate changes shall be made during the term of this Agreement without
the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) calendar days after approval of the monthly invoice by City staff.
43 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit B to this Agreement or specifically approved in writing in
advance by City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
P.E.M. Evans, Inc. Page 2
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Shawn O'Hara to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Municipal Operations Department.
City's Operations Support Superintendent or designee shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator shall represent City in all matters pertaining to the Services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
P.E.M. Evans, Inc. Page 3
8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City. By delivery of completed Work, Consultant certifies that
the Work conforms to the requirements of this Agreement, all applicable federal, state
and local laws, and the highest professional standard.
8.3 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties ") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent, reckless, and/or willful acts,
errors and /or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly
by any of them or for whose acts they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
Consultant.
P.E.M. Evans, Inc. Page 4
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Consultant or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
P.E.M. Evans, Inc. Page 5
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint- venture or syndicate or co- tenancy, which shall result in changing
the control of Consultant. Control means fifty percent (50 %) or more of the voting
power or twenty -five percent (25 %) or more of the assets of the corporation, partnership
or joint- venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Additionally, all material posted in
cyberspace by Consultant, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, shall become the exclusive property of City,
and City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
P.E.M. Evans, Inc. Page 6
17.3 All written documents shall be transmitted to City in formats compatible
with Microsoft Office and /or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
P.E.M. Evans, Inc. Page 7
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
241 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation of this
Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first -
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Jim Auger, Operations Support Superintendent
Municipal Operations Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: David Thompson, Owner and Vice President
P.E.M. Evans, Inc.
3621 Serpentine Drive
Los Alamitos, CA 90720
P.E.M. Evans, Inc. Page 8
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
�f:I N iTf11. /-1111 11T�7.
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28. PREVAILING WAGES
If any of the Work contemplated under the Agreement is considered a "public
work ", pursuant to the applicable provisions of the Labor Code of the State of California,
including but not limited to Section 1720 et seq., not less than the general prevailing
rate of per diem wages including legal holidays and overtime Work for each craft or type
of workman shall be paid to all workmen employed on such. In accordance with the
California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has
ascertained the general prevailing rate of per diem wages in the locality in which the
Work is to be performed for each craft, classification, or type of workman or mechanic
needed to execute the Agreement. A copy of said determination is available by calling
the prevailing wage hotline number (415) 703 -4774, and requesting one from the
P.E.M. Evans, Inc. Page 9
Department of Industrial Relations. The Contractor is required to obtain the wage
determinations from the Department of Industrial Relations and post at the job site the
prevailing rate or per diem wages. It shall be the obligation of the Contractor or any
subcontractor under him /her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation
thereof.
29. STANDARD PROVISIONS
29.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
29.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
29.5 Conflicts or Inconsistencies. in the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.6 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 the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
P.E.M. Evans, Inc. Page 10
29.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
P.E.M. Evans, Inc. Page 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTOF�NEY'S OFFICE
Date: q1 A I I
By: u I V V VV��
Aaron C. Harp p�
City Attorney
ATTEST:
Date:
By: tw��
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: S- S - e 5
By
eor urdo
Acting 9j& a Director
CONSU NT: P.E.M. Evans, Inc., a
CaliforrYa co Doratioro X
Date: 1
By: ; ` \
David Thomp
Owner and VicW President of Operations
Date: -T 1 S
By:
Carol Evan
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
P.E.M. Evans, Inc. Page 12
EXHIBIT A
SCOPE OF SERVICES
DESCRIPTION OF PROJECT
o Furnish all labor, tools, expendable equipment, materials, transportation
services necessary for the annual ultrasonic streetlight pole testing as
described herein including, but not limited to, the following:
• Annual testing of approximately two hundred and fifty (250)
streetlight poles located in and around Newport Center.
• Using ultrasonic technology inspect all streetlight poles for
thickness, damage, corrosion and report missing base covers and
hardware.
• Wire brush bolts and apply a coat of corrosion rust inhibitor to all
bolt, hardware and supply customer with a detailed report
indicating the status of all the poles around Fashion Island.
WORKING HOURS
o Normal working hours shall be between the hours of 7:00 a.m. and 4:30
p.m., Monday through Friday. No Saturday or Sunday work is to be
scheduled without prior written permission from the City, unless it is an
emergency situation.
QUALITY OF WORK AND MATERIALS
o The Contractor shall perform all Work required to be performed, and shall
provide and furnish all the labor, materials, necessary tools, expendable
equipment and all utility and transportation services necessary for the
Project, including delivery, storage and handling of products.
o All material and equipment furnished by the Contractor shall be high grade,
and free from defects and imperfections, unless otherwise hereinafter
specified. Workmanship shall be in accord with the best standard
practices. Both materials and workmanship shall be subject to the
approval of the Project Administrator.
• All work shall be performed in accordance with the HIGHEST INDUSTRY
STANDARDS, as stated in the specifications described herein. Standards
and frequencies may be modified from time to time as deemed necessary
by the City for the proper maintenance of the sites.
• If, in the judgment of the City, the quality of work is less than that specified
herein, the City shall, at its option, in addition to or in lieu of other remedies
provided herein, withhold appropriate payment from the Contractor until
services are rendered in accordance with specifications set forth within this
document and providing no other arrangements have been made between
the Contractor and the City. Failure to notify of a change and /or failure to
P.E.M. Evans, Inc. Page A -1
perform an item or work on a scheduled day may, at the City's sole
discretion, result in deduction of payment for that date, week, or month.
Payment will be retained for work not performed until such time as the
work is performed to City standard.
WORKMANSHIP AND SUPERVISION
• Contractor shall designate a Project Manager to serve as the main contact
for the Contractor throughout the project. The Project Manager shall have
the authority to handle and resolve any contract disputes with the City and
be experienced in streetlight maintenance and repair services.
• All work shall meet with the approval of the City's designated Project
Administrator. Any specific problem area which does not meet the
conditions of the specifications set forth herein shall be called to the
attention of the Contractor's Project Manager and if not corrected, payment
to the Contractor will not be made until condition is corrected in a
satisfactory manner as set forth in the specifications.
RESPONSIBILITY FOR DAMAGES OR INJURY
o Any damage done by Contractor outside the area and scope of the work of
the contract shall be repaired or replaced as directed at no additional cost
to the City.
o Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from
defects, obstructions or from any cause arising from Contractor's Work on
the Project, or the Work of any subcontractor or supplier selected by
Contractor.
SAFETY REQUIREMENTS
o All work performed under this contract shall be performed in such a
manner as to provide maximum safety to the public and where applicable
comply with all safety standards required by CAL -OSHA. The City
reserves the right to issue restraint or cease and desist orders to the
Contractor when unsafe or harmful acts are observed or reported relative
to the performance under this contract. All contractor employees shall
have access to a W.A.T.C.H. (Work Area Traffic Control Handbook) at all
times.
o Contractor's field personnel shall wear easily recognizable uniforms
containing Contractor's name. Contractor shall be responsible for
supplying all appropriate personal protective equipment including but not
limited to safety vests, safety shoes and reflective vests.
o The Contractor shall maintain all work sites free of hazards to persons
and /or property resulting from his /her operations. Any hazardous condition
noted by the Contractor, which is not a result of his /her operations, shall be
P.E.M. Evans, Inc. Page A -2
immediately reported to the City.
o Warning signs, lights, and devices shall be installed and displayed in
conformity with "The California Manual on Uniform Traffic Devices" for use
in performance of work upon highways issued by the State of California,
Department of Transportation.
o Contractor's employees shall be trained in health and safety per CALOSHA
INSPECTION AND REPORTING REQUIREMENTS
• The Contractor shall use testing methods that are standard for the industry
in identifying defects in structures and /or welded connections.
• Nondestructive inspections shall include, but not be limited to, Ultrasonic
testing, Magnetic Particle Yoke testing, and /or Enhanced Magnetic Particle
Yoke testing, as appropriate, to identify defects in welded connections. The
Contractor shall determine the appropriate testing methods for each
structure to identify fractures that do not reveal themselves on the surface
of the metal or in the paint.
• The Contractor shall inventory information in the inspection report for each
structure, which shall include, at a minimum: location; diameter and
thickness of the pole; connection type; and length, diameter and thickness
of mast arm, if present.
• The structure inventory shall also include information, if available, provided
by the Owner on the structure design and manufacture. Any information
available and legible on the structure in the field shall also be included.
• The inspection report shall include a rating for each structure based on the
following rating scale:
• Acceptable
• Marginal
• Failing
o The Contractor shall immediately inform the Owner of any structures
determined to have a structure rating of failing.
o The Contractor shall include a comment section in the report for each
structure that describes the results of the inspection and includes
recommended actions for the structure, including recommended repairs to
restore the structure to a structure rating of marginal or better.
Photographs and sketches shall be included to give a clear understanding and
documentation of distressed structure conditions, i.e., structure coating condition, etc.
P.E.M. Evans, Inc. Page A -3
EXHIBIT B
SCHEDULE OF BILLING RATES
Materials and Labor Pricing 2016
QTY Unit$ Material
230 $ 38.00
Materials and Labor Pricing 2016
QTY Unit$
Extended
Ultra -sonic Inspections $8,740.00
Material
Extended
230 $ 38.00 Ultra -sonic Inspections $8,740.00
Materials and Labor Pricing 2016
QTY Unit$ Material
Extended
230 $ 38.00 Ultra -sonic Inspections $8,740.00
P.E.M. Evans, Inc. Page B -1
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant 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 satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an 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 the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Consultant 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.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
P.E.M. Evans, Inc. Page C -1
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement
and Consultant agrees to maintain continuous coverage through a period
no less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. 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 officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included
as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self -
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant 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 and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement 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
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
P.E.M. Evans, Inc. Page C -2
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non - compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. 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 the
Consultant maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits maintained
by the Consultant. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
E. 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 requirements unless
approved by City.
F. City Remedies for Non - Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
P.E.M. Evans, Inc. Page C -3
judgment may be necessary for its proper protection and prosecution of
the Work.
P.E.M. Evans, Inc. Page C -4