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PW Andersen Drive MUP Construction Phase ServicesAGREEMENT FOR PROFESSIONAL SERVICES WITH BKF ENGINEERS FOR CONSTRUCTION PHASE SERVICES This Agreement is made and entered into this \ l/ day of Oc+ob-e-( , 2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and BkF Engineers, a California corporation (hereinafter "CONSULT ANT"). RECITALS WHEREAS, the CITY has determined that professional engineering services are required to assist the CITY inthe constmction phase of the CITY'S Andersen Drive to Second Street Mult-use Pathway Project; and WHEREAS, the CONSUL TANT has agreed to render such services; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: l. PROJECT COORDINATION. A. CITY'S Project Manager. The Director of Public Works is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONSULTANT'S Project Director. CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Greg Hurd is hereby designated as the PROJECT DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONSULTANT. CONSULTANT shall perform the duties and /or provide the services described in CONSULTANT'S Proposal dated September 11, 2018, marked as Exhibit "A," attached hereto, and incorporated herein. 3. DUTIES OF CITY. CITY shall compensate CONSUL TANT as provided in Paragraph 4, and shall perform the duties as described in Exhibit "A" attached hereto and incorporated herein. 4. COMPENSATION. For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT on a time and materials basis for services rendered at the hourly rates shown in the "Professional Service Fees, January 1, 2018 -December 31, 2018" included in Exhibit "A" attached hereto, with a total not-to-exceed amount of $73,185.00 for costs and services of CONSULTANT provided under this Agreement. ORIGINAL Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONSULTANT. CONSULTANT shall itemize invoices in a manner approved by the PROJECT MANAGER. 5. TERM OF AGREEMENT. The term of this Agreement shall commence upon the date of execution of this Agreement and end on December 31, 2019, unless the parties agree to extend this Agreement for another 90 days, as approved in writing by City Manager. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause . Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen ( 15) day time period . C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY docwnents or materials provided to CONSULTANT and any and all ofCONSULTANT's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7 . OWNERSHIP OF DOCUMENTS. Upon completion of all work under this Agreement, ownership and title to all reports, documents, plans, specifications, and estimates produced as part of this Agreement will automatically be vested in the CITY; and no further agreement \vill be necessary to transfer ownership to the CITY. CONSULTANT shall furnish to CITY all necessary copies of data needed to complete the review and approval process. 8 . INSPECTION AND AUDIT. Upon reasonable notice , CONSULTANT shall make available to CTTY , or its agent, for inspection and audit, all documents and materials maintained by CONSULT ANT in connection with its performance of its duties under this Agreement. CONSULT ANT shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGN ABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights , duties or obligations arising hereunder shall be void and of no effect. 2 I 0. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONSULT ANT shall maintain, at no expense to CITY, the following insurance policies: I. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional perfonns any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONSUL TANTshall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONSULTANT's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B . Other Insurance Requirements . The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance and worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 2 . The additional insured coverage under CONSULT ANT'S insurance policies shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONSULTANT'S policies shall be at least as broad as ISO form CG20 010413. 3. Except for professional liability insurance and worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4 . By execution of this Agreement, CONTRACTOR hereby grants to CITY a waiver of any right to subrogation which any insurer of CONTRACTOR may acquire against CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years . 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit 3 of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONSULTANT's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to OTY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (l) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. OTY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONSUL TANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. l l. INDEMNIFICATION. A. Except as otherwise provided in Paragraph B., CONSULT ANT shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONSULTANT'S performance of its obligations or conduct of its operations under this Agreement. The CONSULT ANT's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONSULTANT's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONSULT ANT'S performance of or operations under this Agreement, CONSUL TANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City lndemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B . Where the services to be provided by CONSULTANT under this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2782.8, CONSULTANT shall, to the fullest extent pemlitted by law, indemnify, release, defend and hold harmless the City Indemnitees from and against any CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULT ANT in the performance of its 4 duties and obligations under this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such CLAIM which is caused by the sole negligence or willful misconduct of CITY. In no event shall the cost to defend charged to the design professional exceed the design professional' s proportionate percentage of fault. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONSUL TANT shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONSULTANT shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations tmder this Agreement. CONSUL TANT shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD-PARTY BENEFICIARIES. CITY and CONSULT ANT do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONSULT ANT' s Project Director: Bill Guerin Director of Public Works City of San Rafael 111 Morphew Street San Rafael, CA 94901 Greg Hurd BkF Engineers, Inc. 711 Grand A venue San Rafael, CA 94901 5 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULTANT and CITY expressly intend and agree that the status of CONSULTANT, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEivlENT --AivlENDivlENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONSULT ANT and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONSULTANT and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the tenns and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT under this Agreement, any monies which CONSULT ANT owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other tem1, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE/ OTHER TAXES. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONSULTANT shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed 6 under this Agreement, until CONSULT ANT has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL ATTEST: LINDSAY LARA, City Clerk APPROVED AS TO FORM: La~4-,~ ROBERT F . EPSTEIN: ty Attorney 7 CONSULTANT R~ Name: Greg Hurd Title: Principal/ EVP and [If Consultant is a corporation, add signature of second corp orate officer] ENGINEERS . SURVEYORS . PLANNERS Project Name: SMART MUP -Rice to Andersen BKF Job No. 20169048 -20 Date: 7 /22/18, Revised 9/11/18 Client: City of San Rafael Dept. of Public Works 111 Morphew Street Consultant: BKF Engineers 4040 Civic Center Dr, Suite 530 San Rafael, CA 94903 San Rafael, CA 94901 Contact: Bill Guerin Contact: Jason Kirchmann DESCRIPTION : Construction Phase Services for phase 1 (Rice Dr to Andersen Dr). In general, additional services include : ,-Review and Respond to contractor submittals and supplier shop drawings . ,-Review and Respond to contractor Requests for Information (RFl's). ,-Issue plan revisions, sketches, contractor directives and technical memorandums to address unforeseen site conditions and City/SMART/Contractor requested change TASK(S): ,. Up to six (6) site visits ,.. Perform a site visit and issue a "punch list" of outstanding items to be completed prior to project closeout . ,-One site visit to observe site conditions after "punch list" items have been addressed by the contractor. ,-Provide record drawings based on contract document changes throughout construction and redlines provided by the contractor. As-Built surveys/drawings are not included. ,-Project management, correspondence management, quality control and reimbursable expenses associated with the above services FEE : $ 73,185 Time and Materials PROJECT MANAGER: Jason Kirchmann DATE: __ 0_91_1_112_0_18 _______ _ (Signature) 4040 Civic Center Dr, Suite 530, San Rafael , CA 94903 I 415 .930 .7960 Exhibit A !~BkFIOQ+ -· YEARS ENGINEERS . SURVEYORS . PLANNERS PROFESSIONAL PERSONNEL SERVICE FEES JANUARY 1, 2018 -DECEMBER 31, 2018 PERSONNEL ENGINEERING Senior Associate Associate Project Manager Engineer N Engineer I, II, III Engineering Assistant Junior Engineer PLANNING Planner I, II, III, N SURVEYING Senior Associate Associate Project Manager Surveyor I, II, III, IV Survey Party Chief Survey Chainman Apprentice I, II, III, IV Instrumentman Surveying Assistant Junior Surveyor Utility Locating Superintendent Utility Locator I, II, III BIM Specialist I, II, III DESIGN AND DRAFTING Technician I, II, III, IV Drafter I, II, III, IV CONSTRUCTION ADMINISTRATION/QSP-QSD Senior Construction Administrator Resident Engineer Field Engineer I, II, III Senior Consultant SERVICES AND EXPENSES Project Assistant Clerical/ Administrative Assistant Delivery Services Principals' time on projects is chargeable at $237.00-$260.00 per hour. HOURLY RATES $212.00 $206.00 $197.00 -$202.00 $182.00 $129.00 -$148.00 -$168.00 $79.00 $67.00 $129.00 -$148.00 -$168.00 -$182.00 $212.00 $206.00 $197.00 -$202.00 $129.00 -$148.00 -$168.00 -$181.00 $169.00 $109.00 $67.00 -$90.00 -$99.00 -$105.00 $145.00 $79.00 $67.00 $170.00 $88.00 -$124.00 -$149.00 $129.00 -$148.00 -$168.00 $123.00 -$131.00 -$143.00 -$155.00 $96.00 -$106.00 -$114.00 -$127.00 $191.00 $142.00 $129.00 -$148.00 -$168.00 $221.00 $79.00 $67.00 $35.00 Charges for outside services, equipment, and facilities not furnished directly by BKF Engineers will be billed at cost plus 10%. Such charges may include, but shall not be limited to printing and reproduction services; shipping, delivery, and courier charges; subconsultant fees and expenses; special fees, permits, and insurance; transportation on public carriers, meals, and lodging; and consumable materials. Mileage will be charged at the prevailing IRS rate per mile. Monthly invoices are due within 30 days from invoice date. Interest will be charged at 0.833% per month on past due accounts. Expert witness/litigation rates are available upon request. ENGINEERS . SURVEYORS . PLANNERS TO : City of San Rafael Department of Public Works 111 Morphew Street San Rafael, CA 94901 We are sending you : D Drawings Via : □ Overnight Purpose : 1:81 For Signature D For Review/Comment NUMBER NUMBER DATE OF COPIES OF PAGES RECER\fED OCT 11 2018 P.UBLIG WORKS DEPT. CllY Of SAN RAFAEL LETTER TRANSMITTAL DATE 10/5/18 I JOB NO. 20169048-21 ATTENTION David Nicholson RE : Francisco Blvd W. MUP Final Design Construction Phase for Anderson Drive to Second Street □ Specifications D Reports ~ Other ~ Regular Mail 0 Will Call D Hand Delivery 1:81 For Approval D For Your File D At Your Request DESCRIPTION 3 -7 Agreement for Professional Services for Construction Phase Services REMARKS: Dave, Attached please find three (3) original wet signed agreements for Francisco Blvd W . Phase Two . Upon execution, please return to us one (l} copy for our records. If you need anything further, please let us know and we are happy to assist. Thank you. Regards, COPY TO: ATTACHMENTS: SIGNED : Hayley Hicks Project Assistant 200 Fourth Street, Suite 300, Santa Rosa, CA 954011707.583.SS00 If enclosures are not as noted, kindly notify us at once. K:\BKF Forms CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Department of Public Works Project Manager: Kevin McGowan Extension: 3389 Contractor Name: BKF Engineers Contractor's Contact: Greg Hurd Contact's Email: ghurd@bck.com D FPPC: Check if Contractor/Consultant must file Form 700 ~~Ofl,01--I $J'ffCJP$f Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Ch eek/In iti a I 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to □ enter a date . b. Email contract (in Word) and attachments to City 9/28/2018 DN Attorney c/o Laraine .Gittens@cityofsanrafael.org ~ 2 City Attorney a. Review, revise, and comment on draft agreement 10/1/2018 ~ LG and return to Project Manager 10/1/2018 b. Confirm insurance requirements, create Job on ~ LG PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to 10/4/2018 ~ BG contractor 4 Project Manager Forward three (3) originals of final agreement to 10/4/2018 ~ contractor for their signature 5 Project Manager When necessary, contractor-signed agreement ~ N/A agendized for City Council approval* *City Council approval required for Professional Services ~ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175 ,000 Cl ick here to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 10/12./1(1.. DN Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed JD/1~/Jt:/' l4-agreement 8 City Attorney Review and approve insurance in PINS, and bonds 10/1~1,~ I&-(for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized \ t) \ Iv I '1,o I 'b official 10 City Clerk Attest signatures, retains original agreement and lD I\ lQI 15 rf.~ forwards copies to Project Manager