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					                                                                                       AGENDA ITEM NO.     3   s




       Concord                     REPORT TO MAYOR AND COUNCIL




TO THE HONORABLE MAYOR AND COUNCIL:


                                                                                  DATE: December 1, 2008


SUBJECT: APPROVING TWO PROFESSIONAL SERVICES AGREEMENTS WITH AZARI
          ENGINEERING, INC. FOR THE DESIGN OF PROJECT NO. 2130, CLAYTON
          ROAD (MARKET STREET TO OAKLAND AVENUE) PAVEMENT
          REHABILITATION IN THE AMOUNT OF $144,000 AND FOR PROJECT NO. 2131,
          CLAYTON ROAD INTERSECTION IMPROVEMENTS IN THE AMOUNT OF
          $159,000 ; AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE
          AGREEMENTS

Report in Brief

        In anticipation of a Federal Economic Stimulus Bill which will fund capital infrastructure projects, the
Metropolitan Transportation Commission (MTC) requested project proposals from the cities and counties in
the nine Bay Area regions. Indications are that the basis of the award of funds will be project readiness, and
projects with completed designs that are ready for bid will compete well for funding. Staff has submitted two
pavement rehabilitation projects to MTC for consideration. To meet the short time frame requirements of the
Stimulus Bill, it will be necessary to begin the design of the projects immediately.

        Staff recommends that the Council approve two Professional Services Agreements with Azari
Engineering, Inc., one for the design of Project No. 2130, Clayton Road (Market Street to Oakland Avenue)
Pavement Rehabilitation in the amount of $144,000 and one. for Project No. 2131, Clayton Road Intersection
Improvements in the amount of $159, 000 (Attachments 1 and 2); and authorize the City Manager to execute
the agreements.

Background

        In anticipation of a second Federal Economic Stimulus Bill which will fund capital infrastructure
projects, the Metropolitan Transportation Commission (MTC) requested project proposals from the cities and
counties in the nine Bay Area regions. Only projects within the Federal Highway System will be eligible to
receive this funding. Currently, the House of Representatives is working on a $30 billion version of the
Stimulus Bill, H.R. 7110, and the Senate is working on a $10.8 billion version, S. 3689.. Congress is expected
to pass a bill in either late November or mid January 2009. Though details are limited on the potential
stimulus bill, indications are that the basis of the award of funds will be project readiness, rather than on a per-
capita basis. Thus, projects with completed designs that are ready for bid will compete well for funding.

        The Council was informed via the November 7, 2008 Council Newsletter that staff submitted two
pavement rehabilitation projects to MTC for consideration. Both projects are spin-offs from Project No. 1363,
Arterial/Collector Overlay Pavement Management System Program list. The first project is Project No. 2130,
                  APPROVING TWO PROFESSIONAL SERVICES AGREEMENTS WITH AZARI
                    ENGINEERING, INC. FOR THE DESIGN OF PROJECT NO. 2130, CLAYTON
                             ROAD (MARKET STREET TO OAKLAND AVENUE) PAVEMENT
                REHABILITATION IN THE AMOUNT OF $144,000 AND FOR PROJECT NO. 2131,
                   CLAYTON ROAD INTERSECTION IMPROVEMENTS IN THE AMOUNT OF
                     $159,000; AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE
                                                                     AGREEMENTS
                                                                     December 1, 2008
                                                                               Page 2

Clayton Road (Market Street to Oakland Avenue) Pavement Rehabilitation. This project will rehabilitate
approximately 330,000 square feet of pavement by grinding and replacing the top 3.2 inches of asphalt
concrete from gutter-lip to gutter-lip. The project budget is estimated at $1,650,000. The second project is
Project. No. 2131, Clayton Road Intersection Rehabilitation. This project will rehabilitate six intersections
along Clayton Road at Ayers Road, Treat Boulevard, Thornwood Drive, Alberta Way, Bailey Road, and Farm
Bureau Road. The Intersection project budget is estimated at $2,000,000.

        To meet the short time frame requirements of the Stimulus Bill, it will be necessary to begin the
design of the projects immediately. Accordingly, staff has obtained proposals from Azari Engineering, Inc.
(AEI) for the design of both projects. As discussed below, staff recommends Azari as the best qualified
design firm to complete the design of these projects as quickly and accurately as will be necessary to meet the
likely stimulus bill requirements. Because both projects are identified in the adopted Capital Improvement
Program (CIP) and to accelerate the completion of the design, staff has authorized AEI to begin the design.
This initial authorization to begin design is within staff's authorized limit.

Discussion

                                                                                                                    0
        In early 2008, Azari Engineering, Inc. (AEI) participated in a Request for Qualifications (RFQ)
process for the design of Project No. 2064, Monument Boulevard Pedestrian Infrastructure Improvements, a
project that is very similar in scope to Project Nos. 2130 and 2131. A selection committee with staff from
Planning & Economic Development and Engineering Services chose AE1 from among the seven fines who
applied as the finn best qualified to provide the required design services. AEI was chosen based on their
qualifications, past experience, results of oral interviews, and reference checks.

         AEI has designed numerous street improvement projects for the City since 1999, including Project
No. 2084, Clayton Road (Willcrest Drive to Latour Lane) Pavement Rehabilitation; Project No. 2085,
Commerce Avenue Pavement Rehabilitation; and Project No. 2023, Landana Sidewalk Improvements.
Additionally, AEI was highly recommended by all references, especially in the areas of constructability of
design, the ability to control their costs, estimating the cost of construction and delivering projects within
schedule. Their work is always precise, on-time and reasonably priced. Their designs are accurate, and rarely
result in contract change orders during construction.

        AEI has submitted proposals for both Project Nos. 2130 and 2131. Staff has reviewed both proposals,
and found them to be reasonable. AEI's proposal for Project No. 2130 is for $144,000; their proposal for
Project No. 2131 is for $159,000. AEI has a Master Agreement with the City for a not-to-exceed amount of
$250,000. However, these two proposals exceed this limit. Accordingly, staff recommends that the Council
approve Professional Services Agreements with AEI in the above not-to-exceed amounts.

      As mentioned above, both projects are identified in the Arterial/Collector Overlay Pavement •
Management System Program list, Project No. 1363. Thus, these are projects that will eventually be designed
and constructed. Even if the Stimulus Bill is not passed, and the funds for construction of these projects is not
                              APPROVING TWO PROFESSIONAL SERVICES AGREEMENTS WITH AZARI
                                ENGINEERING, INC. FOR THE DESIGN OF PROJECT NO. 2130, CLAYTON
                                          ROAD (MARKET STREET TO OAKLAND AVENUE) PAVEMENT
                            REHABILITATION IN THE AMOUNT OF $144,000 AND FOR PROJECT NO. 2131,
•                              CLAYTON ROAD INTERSECTION IMPROVEMENTS IN THE AMOUNT OF
                                 $159,000 ; AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE
                                                                                 AGREEMENTS
                                                                                 December 1, 2008
                                                                                           Page 3

          made available now, AEI's designs for Project No. 2130 and 2131 will be available and usable at a later date,
          when other construction funds for these projects are available.

           Fiscal Impact

                   As a separate agenda item in this Council meeting (Year-End Budget Adjustment), staff has
          requested appropriations for these two projects. These appropriations are intended to cover the costs
          related to design, preparation of environmental documents and other related administrative costs. The fund
          sources for these appropriations are as follows:

           1. - For Project No. 2130, Clayton Road Rehabilitation (Market St. to Oakland Ave.) - $170,000 from
               Redevelopment Agency Unallocated Fund Balance.

          2. For Project No. 2131, Clayton Rd. Intersection Rehabilitation (at Ayers Rd., Treat Blvd., Thornwood
              Dr., Alberta Way, Bailey Rd., and Farm Bureau Rd.) - $180,000 in Prop. I B fund from Project No.
              1363, Arterial/Collector Street/Pavement Rehabilitation

• Public Contact

                  Posting of the Council Agenda.

          Recommendation for Action

                  Approve two Professional Services Agreements with Azari Engineering, Inc., one for the design of
          Project No. 2130, Clayton Road (Market Street to Oakland Avenue) Pavement Rehabilitation in the amount of
          $144,000 and one for Project No. 2131, Clayton Road Intersection Improvements in the amount of $159,999;
          and authorize the City Manager to execute the agreements

                                                                Prepared by: Laurel Purewal
                                                                              Administrative Analyst
                                                                               Laurel. Purewal(c@ci.concord.ca.us

                                                                 Reviewed by: Alex Pascual , PE, Director
                                                                              Building, Engineering &
                                                                              Neighborhood Services
                                                                              Alex.pascual(ci. concord.ca.us
           Daniel E. Keen
           City Manager
           Dan. Keen (wci.concord.ca.us

• Attachment I - Azari Professional Services Agreement for Project No. 2130 in the amount of $144,000.
         Attachment 2 - Aran' Professional Services Agreement for Project No. 2131 in the amount of $159,000.
                                      AGREEMENT FOR PROFESSIONAL SERVICES                            Attachment I
                                             DESIGN PROFESSIONALS
         I            THIS AGREEMENT ("Agreement") is entered into on December 1, 2008 between the City of
• 2           Concord (the "CITY") and Azari Engineering , Inc., whose address is 4807 Clayton Road, Suite

         3    1090, Concord, CA 94521 (the "CONSULTANT").

         4           THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings
         5    and intentions:

         6           The CITY desires to contract with Azari Engineering, Inc., and Azari Engineering, Inc. to
         7    contract with the CITY for provision by Azari Engineering, Inc. to the CITY for professional services

         8    in connection with Clayton Road (Market Street to Oakland Avenue) Pavement Rehabilitation,

      9       Project No. 2130, as further described herein, upon the terms and conditions hereinafter set forth.

     10              NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the
    11       parties herein contained, the parties hereto agree as follows:

                     1. Effective Date . The effective date of this Agreement is December 1, 2008.

                     2. Services . CONSULTANT shall provide the basic services described in detail in

             Exhibit A, proposal from Azari Engineering, Inc., dated November 11, 2008, attached hereto and

             made a part hereof.

    16               3. Amendment . If authorized, CONSULTANT shall furnish additional services, which

    17       are in addition to the basic services. If additional services are requested by CITY, this Agreement may

    18       be amended, modified, or changed by the parties subject to mutual consent by execution of an
    19       addendum by authorized representatives of both parties setting forth the additional scope of services to

    20       be performed, the performance time schedule, and the compensation for such services.

    21              4. Authorized Representatives . Authorized representatives shall represent CITY and

    22       CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by

    23       CONSULTANT under this Agreement except where approval for the CITY is specifically required by

    24       the City Council. All requirements of CITY pertaining to the services to be rendered under this

    25       Agreement by CONSULTANT shall be submitted through these representatives and CITY shall

    26       cooperate with CONSULTANT in all matters relating to this Agreement in such a manner as will

             result in the performance of such work without delay.
W   7
    28              CITY's authorized representative is authorized to execute on behalf of CITY, amendments to

                                                                 1
     I   the agreement, including amendments providing for additional compensation to CONSULTANT, not

 2       to exceed $20,000, including the base contract amount, throughout the remaining term of the              •
 3       agreement. The City Manager is authorized to approve amendments providing for additional

 4       compensation to CONSULTANT, not to exceed $40,000, including the base contract amount

 5       throughout the remaining term of the agreement.

 6                  The CITY authorized representative is Alex Pascual, Director of BENS - Building,

 7       Engineering & Neighborhood Services. The CONSULTANT authorized representative is Mehrzad

 8       Azari, President.

 9                  5. Compensation . CONSULTANT shall be compensated on a time and materials basis

10       not to exceed $ 144,000 for basic services rendered under Section 2, as more particularly described in

11       Exhibit A, Compensation; and CONSULTANT shall be compensated for additional services rendered

12       under Section 3, as more particularly described in a fully approved and executed addendum to this

13       Agreement.

14

15
                CONSULTANT may submit monthly statements for basic and additional services rendered. It

         is intended that payment to CONSULTANT will be made by CITY within (30) days of receipt of
                                                                                                                  •
16       invoice.

17              Where the City is not the final authority over the work product, [or portion thereof], the City

18       reserves the right to withhold 10% of the compensation amount under the Agreement, until such time

19       as the final authority or agency provides comments regarding the work product [or portion thereof],

20       and these are satisfactorily incorporated into the work product, [or portion thereof]; OR approval is

21       granted for the work product [or portion thereof] by the final approving authority/agency.

22              6. Term. The term of this Agreement, subject to termination as set forth in Section 13,

23       shall be from the effective date through December 1, 2009.

24              The CITY's Authorized Representative or City Manager may extend the term of the agreement

25       for a period not to exceed 6 months if necessary for the CONSULTANT to complete the Scope of

26       Work or any additional Scope of Work previously authorized by the CITY. Such Extension of time

27

28
         shall be in writing by a duly executed addendum or amendment to this agreement.

                7. Standard of Performance . CONSULTANT represents to CITY that the services shall
                                                                                                                  •
                                                           2
     1   be performed in an expeditious manner, and with the degree of skill and care' that is required by
•    2   current, good, and sound procedures and practices . CONSULTANT further agrees that the services

     3   shall be in conformance with generally accepted professional standards prevailing at the time work is

     4   performed.

     5           8. Performance by Consultant CONSULTANT shall not employ other consultants or

     6   contractors without the prior written approval of the CITY. CONSULTANT hereby designates the

     7   CONSULTANT' S representative as the person primarily responsible for the day-to-day performance

     8   of CONSULTANT'S work - under this Agreement. CONSULTANT shall not change the

     9   CONSULTANT' S representative without the prior consent of the CITY . Unless otherwise expressly

    10   agreed by the CITY, CONSULTANT 'S representative shall remain responsible for the quality and

    11   timeliness of performance of the services , notwithstanding any permitted or approved delegation

         hereunder.                                       0


                 9. Ownership and Maintenance of Documents .                     All documents furnished by

         CONSULTANT pursuant to this Agreement are instruments of CONSULTANT' s services in respect

         to this project . They are not intended nor represented to be suitable for reuse by others on extensions

    16   of this project or on any other project. Any reuse without specific written verification and adoption by

    17   CONSULTANT for the specific purposes intended will be at user ' s sole risk and without liability or

    18   legal exposure and expenses to CONSULTANT, including attorney's fees arising out of such

    19   unauthorized reuse.

    20          CONSULTANT' s records, documents, calculations , and all other instruments of service

21       pertaining to actual project shall be given to CITY at the completion of the project . The CITY reserves

22       the right to specify the file format that electronic document deliverables are presented to the CITY. If

23       agreement is terminated per Section 13, deliverables shall be provided based on Section 13

24       requirements.

                10. Indemnification . CONSULTANT agrees to indemnify and hold harmless the CITY,

         its officers , agents, employees and volunteers from and against any and all claims, demands , actions,

         losses, damages , injuries, and liability (including all attorney's fees and other litigation expenses)

         arising out of the negligent acts, errors , omissions , recklessness or willful misconduct of

                                                              3
 1   CONSULTANT in the performance of this Agreement.

 2          The CONSULTANT will reimburse the CITY for any expenditures, including reasonable

 3   attorney fees, incurred by the CITY in defending against claims ultimately determined to be due to the

 4   negligent acts, errors, or omissions, recklessness or willful misconduct of the CONSULTANT.

 5          11. Insurance . CONSULTANT shall, at its own expense, procure and maintain in full

 6   force at all times during the term of this Agreement the following insurance:

 7          A. Commercial            General Liability       Coverage. CONSULTANT shall maintain

 8          commercial general liability insurance with limits of no less than one million dollars

 9          ($1,000,000) combined single limit per occurrence or two million dollars ($2,000,000)

10          aggregate limit for bodily injury, personal injury, and property damage.

11          B. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability

12          insurance covering all vehicles used in the performance of this Agreement providing a One

13          Million Dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal

14          injury, and property damage.
                                                                                                               0
15          C. Professional Liability Coverage . CONSULTANT shall maintain professional

16          liability insurance with coverage for all negligent errors, acts or omissions committed by

17          CONSULTANT, its agents and employees in the performance of this Agreement. The amount

18          of this insurance shall be not less than five hundred thousand dollars ($500,000) on a claims

19          made annual aggregate basis or a combined single limit per occurrence basis.

20          D. Compliance with State Workers' Compensation Requirements . CONSULTANT

21          covenants that it will insure itself against liability for Workers' Compensation pursuant to the

22          provisions of California Labor Code §3700, et seq. CONSULTANT shall, at all times, upon

23          demand of the City Council and properly authorized agents, furnish proof that Workers'

24          Compensation Insurance is being maintained by it in force and effect in accordance with the

25          California Labor Code.

26          E. Other Insurance Provisions . The policies are to contain, or be endorsed to contain

27          the following provisions:

28                         (1) CITY, its officers, agents, employees, and volunteers are to be covered

                                                         4
      1                 as additional insureds as respects: Liability arising out of activities performed by or on

•2                      behalf of CONSULTANT and operations of CONSULTANT, premises owned,

      3                 occupied, or used by CONSULTANT. The coverage shall contain no special

  4                     limitations on the scope or protection afforded to CITY, its officers, officials,

  5                     employees, or volunteers. .

  6                             (2) CONSULTANT'S insurance coverage shall be primary insurance with

  7                     respect to CITY, its officers, officials, employees, and volunteers. Any insurance, risk

  8                     pooling arrangement, or self-insurance maintained by CITY, its officers, officials,

  9                     employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall

 10                     not contribute with it.

 11                             (3) Any failure to comply with the reporting provisions of the policy shall

                        not affect the coverage provided to the CITY, its officers, officials, employees, or

                        volunteers.

                               (4) The aforementioned policies shall be issued by an insurance carrier

                        having a rating of Best A-7 or better which is satisfactory to the City Attorney and

 16                     shall be delivered to CITY at the time of the execution of this Agreement or as

 17                     provided below. In lieu of actual delivery of such policies, a Certificate issued by the

 18                     insurance carrier showing such policy to be in force for the period covered by the

 19                     Agreement may be delivered to CITY. Such policies and certificates shall be in a form

 20                     approved by the City Attorney. Except for worker's compensation and professional

 21                    liability insurance, the policies mentioned in this subsection shall name CITY as an

 22                    additional insured and provide for thirty (30) days notice of cancellation to CITY. Said

 23                    policies shall not be canceled earlier than, nor the amount of coverage reduced earlier

 24                    than, thirty (30) days after the CITY receives notices from the insured of the intent of

                       cancellation or reduction.

                12. Suspension of Work. CITY may, at any time, by ten (10) days' written notice,

          suspend further performance by CONSULTANT. All suspensions shall extend the time schedule for

          performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services

                                                           5
 1   performed and reimbursable expenses incurred prior to the suspension date. During the period of

 2   suspension, CONSULTANT shall not receive any payment for services, or expenses, except for

 3   reasonable administration expenses, incurred by CONSULTANT by reason of such suspension.

 4          13. Termination . CITY may terminate this Agreement for any reason upon ten (10) days

 5   written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice

 6   if CONSULTANT breaches this Agreement. In the event of termination, CONSULTANT shall

 7   promptly deliver to the CITY any reports or other written, recorded, photographic, or visual materials

 8   and other deliverables prepared for the CITY prior to the effective date of such termination. After

 9   receipt of deliverables, CITY will pay CONSULTANT for the services performed as of the effective

10   date of the termination.

11          14. Compliance with Civil Rights . During the performance of this contract,

12   CONSULTANT agrees as follows:

13          A. Equal Employment Opportunity . In connection with the execution of this

14          Agreement, CONSULTANT shall not discriminate against any employee or applicant for
                                                                                                                0
15          employment because of race, religion, color, sex, or national origin. Such actions shall include,

16          but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer;

17          recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of

18          compensation; and selection for training including apprenticeship.

19          B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all

20          federal regulations relative to nondiscrimination in federally assisted programs.

21          C. Solicitations for Subcontractors including Procurement of Materials and

22          Equipment . In all solicitation, either by competitive bidding or negotiations, made by

23          CONSULTANT for work to be performed under a subcontract including procurement of

24          materials or leases of equipment, each potential subcontractor, supplier or lessor shall be

25          notified by CONSULTANT of CONSULTANT'S obligation under this Agreement and the

26          regulations relative to nondiscrimination on the grounds of race, religion, color, sex, or

27          national origin.

28          15. Independent Contractor . In assuming and performing the services, CONSULTANT
                                                        6
       is an independent contractor and shall not be eligible for any benefits, which the City may provide its

•21    employees, except as expressly provided for in the Agreement. All persons, if any, hired by

   3   CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed

   4   as employees or agents of the City in any respect. CONSULTANT shall have responsibility for and

   5   control over the means of providing services under this Agreement.

   6           16. Compliance with Laws. CONSULTANT shall comply with all applicable Federal,

   7   State of California, and local laws, rules , and regulations and shall obtain all applicable licenses and

   8   permits for the conduct of its business and the performance of the services.

   9           17. Choice of Laws. This Agreement shall be construed and interpreted in accordance

  10   with the laws of the State of California, excluding any choice of law rules which may direct the

  11   application of the laws of another jurisdiction.

               18. Non-Waiver. The waiver by either party of any breach of any term, covenant, or

       condition contained in the Agreement, or any default in their performance of any obligations under the

       Agreement shall not be deemed to be a waiver of any other breach or default of the same or any other

       term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default

  16   constitute a continuing waiver of same.

 17            19. Enforceability. In the event that any of the provisions or portions of application of

 18    any of the provisions of the Agreement are held to be illegal or invalid by a court of competent

 19    jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of

 20    the Agreement with a view toward effecting the purpose of the Agreement. The illegality or invalidity

 21    of any of the provisions or portions of application of any of the provisions of the Agreement shall not

 22    affect the legality or enforceability of the remaining provisions or portions of application of any of the

 23    provisions of the Agreement.

              20. Integration . The Agreement contains the entire agreement and understanding between

       the parties as to the subject matter of this Agreement. It merges and supersedes all prior or

       contemporaneous agreements , commitments, representation, writings, and discussions between

       CONSULTANT and CITY, whether oral or written.

              21. Successors and Assigns . CITY and CONSULTANT respectively, bind themselves,

                                                           7
 1   their successors, assigns, and legal representatives. CONSULTANT shall not assign or transfer any

 2   interest in the Agreement without the CITY's prior written consent, which consent shall be in the           •

 3   CITY's sole discretion. Any attempted assignment or transfer in breach of this provision shall be void.

 4           22. Attorney' s Fees. If either party to this Agreement commences any legal action against

 5   the other party arising out of this Agreement, the prevailing party shall be entitled to recover its

 6   reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and

 7   attorney's fees.

 8           23. Financial Records . Records of CONSULTANT's direct labor costs, payroll costs,

 9   and reimbursable expenses pertaining to this project covered by this Agreement will be kept 'on a

10   generally recognized accounting basis and made available to CITY if and when required.

11           24. Notices . All notices required hereunder shall be in writing and mailed postage prepaid

12   by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address

13   as shown below, or such other places as CITY or CONSULTANT may, from time to time,

14   respectively, designate in a written notice given to the other. Notice shall be deemed received three (3)
                                                                                                                 •
15   days after the date of the mailing thereof or upon personal delivery.

16

17          To CITY                                Alex Pascual, P.E.
                                                   Director of Building, Engineering and Neighborhood
18                                                 Services
                                                   City of Concord
19                                                 1950 Parkside Drive
                                                   Concord, CA 94519-2578
20                                                 Phone : (925) 671-3470
                                                   Fax: (925) 798-9692
21

22          To CONSULTANT Mehrzad Azari
                             President
23                           Azari Engineering, Inc.
                             4807 Clayton Road, Suite 100
24                           Concord, CA 94521
                             Phone : (925) 676-3700
25                           Fax: (925) 676-4800

26

27
28
                                                                                                                 •
                                                        8
        1           IN WITNESS WHEREOF, the parties have executed this Agreement in one (1) or more
•       2    copies as of the date and year first written above.

        3

        4              CONSULTANT                                       CITY OF CONCORD , a Municipal
                                                                        Corporation
        5

     6      By:                                                        By:
     7      Name:           Mehrzad Azari                              Name:        Daniel E. Keen
            Title:          President                                  Title        City Manager
     8      Address:        4807 Clayton Road, Suite 100               Address:     1950 Parkside Drive
                            Concord, CA 94521                                       Concord , CA 94519
     9      Telephone:      (925) 676-3700                             Telephone:   (925) 671-3150
    10
            APPROVED AS TO FORM:                                       ATTEST:
    11

    12

    13      City Attorney                                              City Clerk
• 14
            Date:                                     , 2008
    15

    16
            FINANCE DIRECTOR'S CERTIFICATION:
    17
            Concord, California
    18
            Date:                    ,     2008
    19

   20
            I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED
   21       DURING THE CURRENT FISCAL YEAR 2008/09 TO PAY THE ANTICIPATED
            EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
   22
            THE SUM OF $144,000.
   23
            Account Code 50095000999 63242 5002130111 63242
   24

   25
            Finance Director's Signature
   26


1W 7
   28

                                                                   9
                              AGREEMENT FOR PROFESSIONAL SERVICES                           Attachment 2
                                     DESIGN PROFESSIONALS
             THIS AGREEMENT ("Agreement") is entered into on December 1, 2008 between the City of

      Concord (the "CITY") and Azari Engineering, Inc., whose address is 4807 Clayton' Road, Suite

 3    1090, Concord, CA 94521 (the "CONSULTANT").

 4           THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings

 5    and intentions:

 6           The CITY desires to contract with Azari Engineering, Inc., and Azari Engineering, Inc. to

 7   contract with the CITY for provision by Azari Engineering, Inc. to the CITY for professional services

 8   in connection with Clayton Road Intersection Rehabilitation (Ayers Road, Treat Boulevard,

 9   Thornwood Drive, Alberta Way, Bailey Road, and Farm Bureau Road), Project No. 2131, as

10   further described herein, upon the terms and conditions hereinafter set forth.

11           NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the

     parties herein contained, the parties hereto agree as follows:

             1. Effective Date . The effective date of this Agreement is December 1, 2008.

             2. Services . CONSULTANT shall provide the basic services described in detail in

     Exhibit A, proposal from Azari Engineering, Inc., dated November 12, 2008, attached hereto and

16   made a part hereof.

17           3. Amendment. If authorized, CONSULTANT shall furnish additional services, which

     are in addition to the basic services . If additional services are requested by CITY, this Agreement may

     be amended, modified, or changed by the parties subject to mutual consent by execution of an

     addendum by authorized representatives of both parties setting forth the additional scope of services to

     be performed, the performance time schedule, and the compensation for such services.

22          4. Authorized Representatives. Authorized representatives shall represent CITY and

23   CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by

24   CONSULTANT under this Agreement except where approval for the CITY is specifically required by

     the City Council. All requirements of CITY pertaining to the services to be rendered under this

     Agreement by CONSULTANT shall be submitted through these representatives and CITY shall

     cooperate with CONSULTANT in all matters relating to this Agreement in such a manner as will

     result in the performance of such work without delay.


                                                         1
  1          CITY's authorized representative is authorized to execute on behalf of CITY, amendments to

  2   the agreement, including amendments providing for additional compensation to CONSULTANT, not             •

  3   to exceed $20,000, including the base contract amount, throughout the remaining term of the

  4   agreement. The City Manager is authorized to approve amendments providing for additional

  5   compensation to CONSULTANT, not to exceed $40,000, including the base contract amount.

  6   throughout the remaining term of the agreement.

  7          The CITY authorized representative is Alex Pascual, Director of BENS - Building,

  8   Engineering & Neighborhood Services. The CONSULTANT authorized representative is Mehrzad

  9   Azari, President.

10           5. Compensation . CONSULTANT shall be compensated on a time and materials basis

11    not to exceed $ 159,000 for basic services rendered under Section 2, as more particularly described in

12    Exhibit A, Compensation; and CONSULTANT shall be compensated for additional services rendered

13    under Section 3, as more particularly described in a fully approved and executed addendum to this

14    Agreement.
                                                                                                               •
15           CONSULTANT may submit monthly statements for basic and additional services rendered. It

16    is intended that payment to CONSULTANT will be made by CITY within (30) days of receipt of

17    invoice.

18           Where the City is not the final authority over the work product, [or portion thereof], the City

19    reserves the right to withhold 10% of the compensation amount under the Agreement, until such time

20    as the final authority or agency provides comments regarding the work product [or portion thereof],

21    and these are satisfactorily incorporated into the work product, [or portion thereof]; OR approval is

22    granted for the work product [or portion thereof] by the final approving authority/agency.

23           6. Term . The term of this Agreement, subject to termination as set forth in Section 13,

24    shall be from the effective date through December 1, 2009.

25           The CITY's Authorized Representative or City Manager may extend the term of the agreement

26    for a period not to exceed 6 months if necessary for the CONSULTANT to complete the Scope of

.27   Work or any additional Scope of Work previously authorized by the CITY. Such Extension of time
                                                                                                               •
28    shall be in writing by a duly executed addendum or amendment to this agreement.

                                                         2
               7. Standard of Performance. CONSULTANT represents to CITY that the services shall

•21    be performed in an expeditious manner, and with the degree of skill and care that is required by

   3   current, good, and sound procedures and practices. CONSULTANT further agrees that the services

   4   shall be in conformance with generally accepted professional standards prevailing at the time work is

   5   performed.

   6           8. Performance by Consultant CONSULTANT shall not employ other consultants or

   7   contractors without the prior written approval of the CITY. CONSULTANT hereby designates the

   8   CONSULTANT'S representative as the person primarily responsible for the day-to-day performance

   9   of CONSULTANT'S work under this Agreement. CONSULTANT shall not change the

  10   CONSULTANT'S representative without the prior consent of the CITY. Unless otherwise expressly

  11   agreed by the CITY, CONSULTANT'S representative shall remain responsible for the quality and

       timeliness of performance of the services, notwithstanding any permitted or approved delegation

       hereunder.

               9. Ownership and Maintenance of Documents . All documents furnished by

       CONSULTANT pursuant to this Agreement are instruments of CONSULTANT' s services in respect

 16    to this project. They are not intended nor represented to be suitable for reuse by others on extensions

 17    of this project or on any other project. Any reuse without specific written verification and adoption by

 18    CONSULTANT for the specific purposes intended will be at user's sole risk and without liability or

 19    legal exposure and expenses to CONSULTANT, including attorney's fees arising out of such

 20    unauthorized reuse.

 21           CONSULTANT's records, documents, calculations, and all other instruments of service

 22    pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves

 23    the right to specify the file format that electronic document deliverables are presented to the CITY. If

 24    agreement is terminated per Section 13, deliverables shall be provided based on Section 13

       requirements.

              10. Indemnification . CONSULTANT agrees to indemnify and hold harmless the CITY,

       its officers, agents, employees and volunteers from and against any and all claims, demands, actions,

       losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses)

                                                          3
     1   arising out of the negligent acts, errors, omissions, recklessness or willful misconduct of

 2       CONSULTANT in the performance of this Agreement.                                                          •

 3              The CONSULTANT will reimburse the CITY for any expenditures, including reasonable

 4       attorney fees, incurred by the CITY in defending against claims ultimately determined to be due to the

 5       negligent acts, errors, or omissions, recklessness or willful misconduct of the CONSULTANT.

 6              11. Insurance . CONSULTANT shall, at its own expense, procure and maintain in full

 7       force at all times during the term of this Agreement the following insurance:

 8              A. Commercial            General   Liability Coverage. CONSULTANT shall maintain

 9              commercial general liability insurance with limits of no less than one million dollars

10              ($1,000,000) combined single limit per occurrence or two million dollars ($2,000,000)

11              aggregate limit for bodily injury, personal injury, and property damage.

12              B. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability

13              insurance covering all vehicles used in the performance of this Agreement providing a One

14              Million Dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal

15              injury, and property damage.
                                                                                                                   •
16              C. Professional Liability Coverage. CONSULTANT shall maintain professional

17              liability insurance with coverage for all negligent errors, acts or omissions committed by

18              CONSULTANT, its agents and employees in the performance of this Agreement. The amount

19              of this insurance shall be not less than five hundred thousand dollars ($500,000) on a claims

20              made annual aggregate basis or a combined single limit per occurrence basis.

21              D. Compliance with State Workers' Compensation Requirements . CONSULTANT

22              covenants that it will insure itself against liability for Workers' Compensation pursuant to the

23              provisions of California Labor Code §3700, et seq. CONSULTANT shall, at all times, upon

24              demand of the City Council and properly authorized agents, furnish proof that Workers'

25              Compensation Insurance is being maintained by it in force and effect in accordance with the

26              California Labor Code.

27              E. Other Insurance Provisions . The policies are to contain, or be endorsed to contain
                                                                                                                   •
28             the following provisions:

                                                            4
                                (1) CITY, its officers, agents, employees, and volunteers are to be covered

•21                     as additional insureds as respects: Liability arising out of activities performed by or on

      3                 behalf of CONSULTANT and operations of CONSULTANT, premises owned,

   4                    occupied, or used by CONSULTANT. The coverage shall contain no special

      5                 limitations on the scope or protection afforded to CITY, its officers, officials,

   6                    employees, or volunteers.

   7                            (2) CONSULTANT'S insurance coverage shall be primary insurance with

   8                    respect to CITY, its officers, officials, employees, and volunteers. Any insurance, risk

   9                    pooling arrangement, or self-insurance maintained by CITY, its officers, officials,

  10                    employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall

  11                    not contribute with it.

                                (3) Any failure to comply with the reporting provisions of the policy shall

                        not affect the coverage provided to the CITY, its officers, officials, employees, or

                        volunteers.

                                (4) The aforementioned policies shall be issued by an insurance carrier

 16                     having a rating of Best A-7 or better which is satisfactory to the City Attorney and

 17                     shall be delivered to CITY at the time of the execution of this Agreement or as

 18                     provided below. In lieu of actual delivery of such policies, a Certificate issued by the

 19                     insurance carrier showing such policy to be in force for the period covered by the

 20                    Agreement may be delivered to CITY. Such policies and certificates shall be in a form

 21                    approved by the City Attorney. Except for worker's compensation and professional

 22                    liability insurance, the policies mentioned in this subsection shall name CITY as an

 23                    additional insured and provide for thirty (30) days notice of cancellation to CITY. Said

 24                    policies shall not be canceled earlier than, nor the amount of coverage reduced earlier

                       than, thirty (30) days after the CITY receives notices from the insured of the intent of

                       cancellation or reduction.

                 12. Suspension of Work. CITY may, at any time, by ten (10) days' written notice,

          suspend further performance by CONSULTANT. All suspensions shall extend the time schedule for

                                                           5
 1   performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services

 2   performed and reimbursable expenses incurred prior to the suspension date. During the period of

 3   suspension, CONSULTANT shall not receive any payment for services, or expenses, except for

 4   reasonable administration expenses, incurred by CONSULTANT by reason of such suspension.

 5           13. Termination . CITY may terminate this Agreement for any reason upon ten (10) days

 6   written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice

 7   if CONSULTANT breaches this Agreement. In the event of termination, CONSULTANT shall

 8   promptly deliver to the CITY any reports or other written, recorded, photographic, or visual materials

 9   and other deliverables prepared for the CITY prior to the effective date of such termination. After

10   receipt of deliverables, CITY will pay CONSULTANT for the services performed as of the effective

11   date of the termination.

12          14. Compliance with Civil Rights . During the performance of this contract,

13   CONSULTANT agrees as follows:

14          A. Equal Employment Opportunity . In connection with the execution of this

15          Agreement, CONSULTANT shall not discriminate against any employee or applicant for

16          employment because of race, religion, color, sex, or national origin. Such actions shall include,

17          but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer;

18          recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of

19          compensation; and selection for training including apprenticeship.

20          B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all

21          federal regulations relative to nondiscrimination in federally assisted programs.

22          C. Solicitations for Subcontractors including Procurement of Materials and

23          Equipment. In all solicitation, either by competitive bidding or negotiations, made by

24          CONSULTANT for work to be performed under a subcontract including procurement of

25          materials or leases of equipment, each potential subcontractor, supplier or lessor shall be

26          notified by CONSULTANT of CONSULTANT'S obligation under this Agreement and the

27

28
            regulations relative to nondiscrimination on the grounds of race, religion, color, sex, or

            national origin.
                                                                                                                •
                                                        6
         1            15. Independent Contractor . In assuming and performing the services, CONSULTANT

•   2         is an independent contractor and shall not be eligible for any benefits, which the City may provide its

         3    employees, except as expressly provided for in the Agreement. All persons, if any, hired by

         4    CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed

         5    as employees or agents of the City in any respect. CONSULTANT shall have responsibility for and

     6       control over the means of providing services under this Agreement.

     7               16. Compliance with Laws. CONSULTANT shall comply with all applicable Federal,

     8       State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and

     9       permits for the conduct of its business and the performance of the services.

    10               17. Choice of Laws. This Agreement shall be construed and interpreted in accordance
    11       with the laws of the State of California, excluding any choice of law rules which may direct the

             application of the laws of another jurisdiction.

                     18. Non -Waiver. The waiver by either party of any breach of any term, covenant, or

             condition contained in the Agreement, or any default in their performance of any obligations under the

             Agreement shall not be deemed to be a waiver of any other breach or default of the same or any other

    16       term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default

    17       constitute a continuing waiver of same.

    18               19. Enforceability . In the event that any of the provisions or portions of application of

    19       any of the provisions of the Agreement are held to be illegal or invalid by a court of competent

    20       jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of

    21       the Agreement with a view toward effecting the purpose of the Agreement. The illegality or invalidity

    22       of any of the provisions or portions of application of any of the provisions of the Agreement shall not

    23       affect the legality or enforceability of the remaining provisions or portions of application of any of the

    24       provisions of the Agreement.

                    20. Integration . The Agreement contains the entire agreement and understanding between

             the parties as to the subject matter of this Agreement. It merges and supersedes all prior or

             contemporaneous agreements, commitments, representation, writings, and discussions between

             CONSULTANT and CITY, whether oral or written.

                                                                 7
 I           21. Successors and Assigns . CITY and CONSULTANT respectively, bind themselves,

 2   their successors, assigns, and legal representatives. CONSULTANT shall not assign or transfer any           •

 3   interest in the Agreement without the CITY's prior written consent, which consent shall be in the

 4   CITY's sole discretion. Any attempted assignment or transfer in breach of this provision shall be void.

 5           22. Attorney's Fees. If either party to this Agreement commences any legal action against

 6   the other party arising out of this Agreement, the prevailing party shall be entitled to recover its

 7   reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and

 8   attorney's fees.

 9           23. Financial Records . Records of CONSULTANT's direct labor costs, payroll costs,

10   and reimbursable expenses pertaining to this project covered by this Agreement will be kept on a

11   generally recognized accounting basis and made available to CITY if and when required.

12           24. Notices . All notices required hereunder shall be in writing and mailed postage prepaid

13   by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address

14   as shown below, or such other places as CITY or CONSULTANT may, from time to time,
                                                                                                                 •
15   respectively, designate in a written notice given to the other. Notice shall be deemed received three (3)

16   days after the date of the mailing thereof or upon personal delivery.

17

18           To CITY                               Alex Pascual, P.E.
                                                   Director of Building, Engineering and Neighborhood
19                                                 Services.
                                                   City of Concord
20                                                 1950 Parkside Drive
                                                   Concord, CA 94519-2578
21                                                 Phone : (925) 671-3470
                                                   Fax: (925) 798-9692
22

23           To CONSULTANT                         Mehrzad Azari
                                                   President
24                                                 Azari Engineering, Inc.
                                                   4807 Clayton Road, Suite 100
25                                                 Concord, CA 94521
                                                   Phone : (925) 676-3700
26                                                 Fax: (925) 676-4800

27
                                                                                                                 •
28
                                                         8
•   12           IN WITNESS WHEREOF, the parties have executed this Agreement in one (1) or more

     3   copies as of the date and year first written above.

     4

     5            CONSULTANT CITY OF CONCORD, a Municipal
                                    Corporation
     6

     7   By:                                By:
     8   Name: Mehrzad Azari Name: Daniel E. Keen
         Title: President Title City Manager
     9   Address: 4807 Clayton Road, Suite 100 Address: 1950 Parkside Drive
                   Concord, CA 94521                         Concord, CA 94519
    10   Telephone: (925) 676-3700 Telephone: (925) 671-3150
    11
         APPROVED AS TO FORM: ATTEST:




         City Attorney City Clerk


         Date:                   ,      2008
    16
    17
         FINANCE DIRECTOR'S CERTIFICATION:
    18
         Concord, California
    19
         Date:                    ,     2008
    20
    21
         I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED
    22   DURING THE CURRENT FISCAL YEAR 2008/09 TO PAY THE ANTICIPATED
         EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
    23
         THE SUM OF $ 159,000.
    24
         Account Code 47795000999 63242 4772131111 63242
    25

    26
         Finance Director's Signature
is 27
   28

                                                               9

				
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