Resolution Approving a Professional Services Agreement to Provide Contract Engineering Staff Support Services for the City of Livingston and Authorizing the City Manager to Execute the Agreement in a Form Acceptable to the City Attorney

Meeting Date: October 01, 2013

Agenda Item #5. Resolution Approving a Professional Services Agreement to Provide Contract Engineering Staff Support Services for the City of Livingston and Authorizing the City Manager to Execute the Agreement in a Form Acceptable to the City Attorney.

STAFF REPORT

AGENDA ITEM: Resolution Approving A Professional Services Agreement to Provide Contract Engineering Staff Support Services for the City of Livingston and, Authorizing the City Manager to Execute the Agreement, In a Form Acceptable to the City Attorney.

MEETING DATE: October 1, 2013

PREPARED BY: Jose Antonio Ramirez, City Manager

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Staff recommends that City Council adopt a Resolution to approve a Professional Services Agreement to provide Contract Engineering Staff Support Services. Please select one of the following Engineering Firms:

1) SNG & Associates, Inc. ("SNG").

2) Gouveia Engineering, Inc. ("GE").

3) Provost & Prichard Engineering, Inc.

• The City Council consider a (3) year contract, expiring October 1, 2016.

BACKGROUND:

Every 5 years CALTRANS requires that the City of Livingston go out to Request for Proposals (RFPs) in order to comply with its consultant retention policies. Failure to comply with these requirements jeopardizes federal and state reimbursements. CALTRANS requires that a competitive selection process be used as outlined in their Local Assistance Procedures Manual.

The City of Livingston in complying with CALTRANS’ Local Assistance Procedures Manual sent out an RFP for Professional Engineering Services on June 5, 2013. Before the dne date the City received five mqumes.

DISCUSSION:

On July 5, 2013, only 2 proposals were submitted and interviews where scheduled for July 23, 2013 in front of the City Council. Engineering proposals were provided to the City Council and interviews were conducted. The City Council had the opportunity to ask questions and review provided material. On August 6, 2013, the City Council decided not to select any of the Engineering Firms and directed staff to send out an RFP for Professional Engineering Services for a 30-day timeframe once again.

On September 23, 2013, staff received proposals from a total of three firms aud at least 3 inquiries from other engineering firms that didn’t submit.

FISCAL IMPACT:

Costs for services provided by Professional Engineering Services are paid from an array of funding sources, General Fund, Enterprise Funds, New Development, Special Projects and Grants.

ATTACHMENTS:

I. Resolution No. 2013-

2. Professional Engineering Proposals (Previously submitted to City Council)

3. Professional Services Agreement

RESOLUTION NO. 2013-

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH —— INC. TO PROVIDE CONTRACT ENGINEERING STAFF SUPPORT SERVICES FOR THE CITY OF LIVINGSTON AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT IN A FORM APPROVED BY THE CITY ATTORNEY

WHEREAS, in order to comply with Caltrans Local Assistance Procedures Manual, the City issued a Request for Proposals for Engineering Staff Support Services. Proposals were due on July 5, 2013; and

WHEREAS, on July 23, 2013, the City Council interviewed the firms that submitted proposals; and

WHEREAS, on August 6, 2013, the City Council decided not to make a selection and directed staff to once again send out an RFP for Professional Engineering Services for a 30-day timeframe with a due date of September 23, 2013; and

WHEREAS, only one new firm submitted a proposal by the September 23, 2013, due date; and

WHEREAS, on October 1, 2013, the City Council interviewed the firm that submitted the proposal, but will consider the previous two firms; and

WHEREAS, the City Council desires to enter into a Professional Services Agreement with —— , Inc. to provide contract engineering staff support services to the City from October I, 2013 to October 1, 2016; and

WHEREAS, , Inc. will be responsible for overseeing the functions of the Engineering Division and assisting the City Manager in the functions of the Public Works Department and Community Development Department; and

WHEREAS, , Inc. will be providing development review, permit processing, capital projects design, bidding, contract administration, inspections, grant application preparation and grant administration for the City of Livingston and other duties as assigned; and

WHEREAS, the City desires to enter into a Professional Engineering Services Agreement for a term of (3) years between the City of Livingston and , Inc.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Livingston hereby adopts Resolution No. 2013-_ approving an Agreement with , Inc. to provide engineering contract staff support services, and authorizing the City Manager to execute the Professional Engineering Services Agreement in a form approved by the City Attorney.

Passed and adopted this 1st day of October, 2013, by the following vote:

AYES:

NOES:

ABSENT:

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Rodrigo Espinoza, Mayor of the City of Livingston

ATTEST:

I, hereby certify that the foregoing resolution was regularly introduced, passed and adopted at a Regular Meeting of the City Council of the City of Livingston this 1’st day of October, 2013.

2013.

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Betty Cota, Deputy City Clerk of the City of Livingston

PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF LIVINGSTON AND _ TO PROVIDE CONTRACT ENGINEERING STAFF SUPPORT SERVICES

THIS AGREEMENT for consulting services is made by and between the City of Livingston ("City") and as of October 1, 2013.

Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, City Engineer shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.

Section 2. TERM. The term of this Agreement shall begin on the date first noted above and shall end upon termination of the Agreement by either the City or City Engineer, as provided for in Section 10.1.

Section 3. STANDARD OF PERFORMANCE. Engineer shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which City Engineer is engaged in the geographical area in which City Engineer practices its profession. City Engineer shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Engineer’s profession.

Section 4. COMPENSATION. City hereby agrees to pay City Engineer (see individual proposal fee schedule). City Engineer shall only be compensated for work the City requests. City is not obligated to provide City Engineer with a specific amount of work. City will only require City Engineer’s services as needed and as determined by the City Manager.

4.1 clip_image003Invoices. City Engineer shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date, which describe the work performed by City Engineer. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay City Engineer.

4.2 Reimbursable Expenses. During the term of this Agreement, City Engineer is responsible for all expenses relating to his duties with the exception of travel outside of Merced County. Travel expenses shall include out-of-pocket expenses which are incurred in connection with the performance of the duties under this Agreement. They include parking, bridge tolls, and automobile mileage (at the current IRS rate), hotel and meal expenses at cost but not to exceed the published guidelines for Federal employees of similar status. In no circumstance shall reimbursable expenses include time of the City Engineer in traveling to and from the City of Livingston.

4.3 Payment of Taxes. City Engineer is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.

Section 5. FACILITIES AND EQUIPMENT. Except as set forth herein, City Engineer shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to City Engineer only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.

City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for City Engineer’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including, but not limited to, computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.

Section 6. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, City Engineer, at its own cost and expense, shall procure insurance (commercial general insurance, automobile liability insurance, workers’ compensation and professional liability insurance) against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the City Engineer and its agents, representatives, employees, and subcontractors. City Engineer shall provide proof satisfactory to City of such insurance satisfactory in all respects to the City prior to providing serviced under this Agreement. City Engineer shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be City Engineer’s responsibility. City Engineer shall not allow any subcontractor to commence work on any subcontract until City Engineer has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution.

Section 7. INDEMNIFICATION. To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.8), City Engineer shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused by the willful misconduct or negligent acts or omissions of City Engineer or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Engineer shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of City Engineer or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of City Engineer to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code.

Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve City Engineer from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, City Engineer acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.

Section 8. STATUS OF CONSULTANT. At all times during the term of this Agreement, City Engineer shall be an independent contractor and shall not be an employee of City. Except as City may specify in writing, City Engineer shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. City Engineer shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. City shall have the right to control City Engineer only insofar as the results of City Engineer’s services rendered pursuant to this Agreement; however, otherwise City shall not have the right to control the means by which City Engineer accomplishes services rendered pursuant to this Agreement.

Section 9 LEGAL REQUIREMENTS.

9.1 Governing Law. The laws of the State of California shall govern this Agreement

9.2 Compliance with Applicable Laws. City Engineer and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. City Engineer’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.

9.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, City Engineer and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.

9.4 Licenses and Permits. City Engineer represents and warrants to City that City Engineer and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. City Engineer represents and warrants to City that City Engineer and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, City Engineer and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.

9.5 Nondiscrimination and Equal Opportunity. City Engineer shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by City Engineer under this Agreement. City Engineer shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of City Engineer thereby.

City Engineer shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.

Section 10. TERMINATION AND MODIFICATION.

10.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to City Engineer.

City Engineer may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation.

In the event of termination, City Engineer shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon City Engineer delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to City Engineer or prepared by or for City Engineer or the City in connection with this Agreement.

10.2 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.

10.3 Assignment and Subcontracting. City and City Engineer recognize and agree that this Agreement contemplates personal performance by City Engineer and is based upon a determination of City Engineer’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of City Engineer. City Engineer may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. City Engineer shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.

10.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and City Engineer shall survive the termination of this Agreement.

Section 11. KEEPING AND STATUS OF RECORDS.

11.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Engineer prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. City Engineer hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including, but not limited to, those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and City Engineer agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.

11.2 Engineer’s Books and Records. City Engineer shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the City Engineer to this Agreement.

11.3 Inspection and Audit of Records. Any records or documents that Section 10.2 of this Agreement requires City Engineer to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.

Section 12 MISCELLANEOUS PROVISIONS.

12.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.

12.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Merced or in the United States District Court for the Eastern District of California.

12.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.

12.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.

12.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.

12.6 Conflict of Interest. City Engineer may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place City Engineer in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq,

City Engineer shall not employ any City official in the work performed pursuant to this Agreement No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq,

City Engineer hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City, If City Engineer was an employee, agent, appointee, or official of the City in the previous twelve months, City Engineer warrants that it did not participate in any manner in the forming of this Agreement City Engineer understands that, if this Agreement is made in violation of Government Code §1090 et seq,, the entire Agreement is void and City Engineer will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and City Engineer will be required to reimburse the City for any sums paid to the City Engineer. City Engineer understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California,

12.7 Contract Administration. This Agreement shall be administered by the City Manager ("Contract Administrator”), All correspondence shall be directed to or through the Contract Administrator or his or her designee.

12.8 Notices. Any written notice to City Engineer shall be sent to:

Any written notice to City shall be sent to: City of Livingston

1416 C Street

Livingston, CA 95334

12.9 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A represents the entire and integrated agreement between City and Engineer and supersedes all prior negotiations, representations, or agreements, either written or oral

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first set forth above, which date shall be considered by the Parties to be the effective date of this Agreement

CITY OF LIVINGSTON CITY ENGINEER

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Jose A. Ramirez, City Manager

Date: _ Date: _ Attest:

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Betty Cota, Deputy, City Clerk

Date: _

Approved as to Form:

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Jose M. Sanchez, City Attorney

Date: _

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