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HomeMy WebLinkAboutCC 11 NOISE MONITORING 9-17-90'ENT CALENDAR N0. 11 5, X1/90 �.� Inter - Com DATE: SEPTEMBER 17, 19 WILLIAM HUSTON, CITY MANAGER TO: COMMUNITY DEVELOPMENT DEPARTMENT FROM: APPROVAL OF CONSULTANT SERVICES AGREEMENT FOR NOISE SUBJECT: MONITORING PROGRAM FOR THE CITY OF TUSTIN RECOMMENDATION It is recommended that City Council authorize the City Manager to execute the attached Consultant Service Agreement for Noise Monitoring Services for the City of Tustin. BACKGROUND AND DISCUSSION The firm of J. J. Van Houten and Associates has been providing noise monitoring and technical document review services to the City since 1987. As part of the 1990-91 Budget, the City Council approved an on- going request to retain J. J. Van Houten and Associates for consultant services for Airport Noise Monitoring and related tasks. A contract reviewed and approved by the City Attorney has been prepared and is included for Council review and final action. The Scope of Work contained in the attached contract will provide technical services related to Airport/aircraft noise, review and comment on technical documents, conduct aircraft noise measurements and preparation of reports. Approval of the contract will allow the City to continue to provide the same level of noise measurement service and technical expertise in reviewing noise related documents. The total not -to -exceed fee for services is $15,000.00. Should additional services or hearings become necessary, such fees would be based on the hourly labor schedule attached as part of Exhibit A. City Council Report Consultant Services Agreement September 17, 1990 Page two CONCLUSION It is recommended that the City Council authorize the City Manager to execute said agreement. 4R*ta 'Westfid1d Asst. Dir. Community Development RW:kf/consult.rw Christine Shingleton Director of Communi Development attachment: Consultant Services Agreement Community Development Department CONTRACT SERVICES AGREEMENT THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN (herein "City") , a municipal corporation and J. J. VAN HOUTEN AND ASSOCIATES, INC. (herein "Contractor"). the parties hereto agree as follows: 1.0 SERVICES. 1.1 scope of Services. In conformance with all terms and conditions of this Agreement, the Contractor shall provide technical services related to airport/aircraft noise, including but not limited to document review (with any appropriate comment), aircraft noise measurements and generation of reports. The specifics of each task shall be identified and agreed to in writing prior to commencement of work (herein "Scope of Work"). 1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City of Tustin and any Federal, State or local governmental agency of competent jurisdiction. 1.3 Licenses and Permits. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as 1 may be required by law for the performance of the services required by this Agreement. 1.4 Familiarity with Work. By executing this Contract, Contractor warrants that (a) he has thoroughly investigated and considered the work to, be performed, (b) he has investigated the site of the work and fully acquainted himself with the conditions there existing, (c) he has carefully considered how the work should be performed, and (d) he fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, he shall immediately inform City of such fact and shall not proceed except at contractor's risk until written instructions are received from the Contract Officer. 1.5 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, and other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.6 Additional Services. In accordance with the terms and conditions of this Agreement, the Contractor shall perform services in addition to those specified in the Scope of Work when directed to do so by the Contract Officer, provided that Contractor shall not be required to perform any additional services without.compensation. Any addition in compensation not exceeding ten percent (10%) of the Contract sum may be approved by the Contract Officer. Any greater increase must be approved by the City Manager. 2.0 COMPENSATION 2.1 For the services rendered pursuant to this agreement, the Contractor shall be compensated in an amount not to exceed that figure established in the Scope of Work for a specific task (herein "Contract Sum"). The method of compensation may include a lump sum payment upon completion, payment in accordance with the percentage of completion of the services, payment for time and materials based upon the Contractor's rates as specified in Exhibit "A", but not exceeding the Contract Sum, or such other methods as may be specified in the Schedule of Compensation (Exhibit "A"). Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, transportation expense, telephone expense, premiums for bonds and insurance, and similar costs and expenses when and if specified in the Schedule of Compensation (Exhibit "A"). 3 2.2 Method of Payment. Any month in which Contractor wishes to receive payment, no later than the first (1st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City will pay contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of said month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed in a timely manner as established in the Scope of Work. Extensions to the time period specified in the Scope of Work may be approved in writing by the Contract Officer. 3.3 Force Ma ' el ure. The time period specified in the Scope of Work for performance of the services rendered to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, acts of the Government, fires, earthquakes, floods, epidemic, quarantine 4 restrictions, riots, strikes, freight embargos, acts of any governmental agency, and usually severe weather if the Contractor shall within ten (10) days of the commencement of such delay notify the Contracting Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in his judgment such delay is justified, and the Contracting Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 7.5 of this Agreement, this Agreement shall continue in full force and effect for the 1990 - 1991 fiscal year. 4.0 COORDINATION OF WORK. 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representative of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: John J. Van Houten, Principal Engineer David Wieland, Senior Engineer Mike Lee, Associate Engineer It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. E Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. The foregoing principals may not be changed by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may N be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform, the services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor's acts or omissions rising out of or related to Contractor's performance under this Agreement. Contractor shall also carry Workers' Compensation Insurance in accordance with State Workers' Compensation laws. Such insurance shall be kept in effect during the term of this Agreement and shall not be cancelable without thirty (30) days' written notice of proposed cancellation to City. A certificate evidencing the foregoing and naming the City as an 7 additional insured shall be delivered to and approved by the City prior to commencement of the services hereunder. The procuring of such insurance of the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Contractor's obligation to indemnify the City, its contractors or emplovees. The amount of insurance required hereunder shall include comprehensive general inability, personal injury and automobile liability with limits of at least $1,000,000 combined single limit per occurrence and professional liability coverage with limits of at least $500,000 combined single limit per occurrence. 5.2 Indemnification. The Contractor shall defend, indemnify and hold harmless the City, its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person (s) , for damage to property (including property owned by the City) and for errors and omissions committed by Contractor, its officers, employees and agents, arising out of or related to Contractor's performance under this Agreement, except for such loss as may be caused by City's own negligence or that of its officers or employees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond 8 in the penal sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is: waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and currentcopy of his power of attorney. The bond shall remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 6.0 RECORDS AND REPORTS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Contractor shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 01 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Contractor may retain copies of such documents for its own use. It shall have an unrestricted right to use the concepts embodied therein. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such 10 county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. , 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default with ninety (90) days after service of the notice, or if the cure of the default is commenced with thirty (30) days after service of said notice and is cured within a reasonable time after commencement; provided that if the default is an immediate danger to the health, safety and general welfare, the City may take immediate action under Section 7.5. Compliance with the provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the exercise of any right or remedy of a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. City's consent or approval of any act by Contractor requiring City's consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any 11 subsequent act of Contractor. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default;concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies are cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.6 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its 12 sureties shall be liable for and shall pay to the City the sum of $0.00 as liquidated damages for each working day of delay in ;the performance of any service required hereunder, as specified in the Scope of Work. The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.7 Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor, except that where termination is due to the fault of the Contractor and constitutes an immediate danger to the health, safety and general welfare, the period of notice shall be such shorter time as may be appropriate. Upon receipt of the notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the contract Officer thereafter in accordance with the Schedule of Compensation ( Exhibit "All) or such as may be approved by the Contract Officer. 7.8 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may take over the work 13 and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated. 7.9 Attorneys' Fees. If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 8.0 CITY OFFICERS AND EMPLOYEES; NON DISCRIMINATION 8.1 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the city shall have any personal interest, direct or indirect, in this Agreement nor shall any such officer or employee participate 14 in any decision relating to the Agreement which affects his personal interest or the interest of any corporation, partnership or association in which he is directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of , any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Either party may change its 15 address by notifying the other party of the change of address in writing. Notice shall be deemed communicated in forty- eight (48) hours from the time of mailing if mailed as provided in this Section. TO CITY: CITY OF TUSTIN 300 Centennial Way Tustin, CA 92680 Attention: Contract Officer Christine Shingleton, Director of Community Development TO CONTRACTOR: J. J. VAN HOUTEN & ASSOCIATES, INC. 1260 E. Katella Avenue Anaheim, CA 92805 Attention: Mr. John J. Van Houten, President 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable 16 by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceable shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which shall be interpreted to carry out the intent of the parties hereunder. 9."5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF the parties have executed this Agreement as of the dates stated below. DATED: DATED: APPROVED AS TO FORM: JAMES G. ROURKE City Attorney 17 CITY OF TUSTIN City Manager, City of Tustin CONSULTANT: J.J. VAN HOUTEN & ASSOCIATES, INC. John J. Van Houten President EXHIBIT "A" SCHEDULE OF COMPENSATION HOURLY LABOR FEE SCHEDULE Classification Fee/Hour Principal Consultant $110.00 Principal Engineer 90.00 Senior Engineer 75.00 Associate Engineer 60.00 Senior Technician 45.00 Word Processor 45.00 Illustrator/Draftsman 45.00 COURT APPEARANCES AND DEPOSITIONS Fees for appearance of the technical staff in court or to provide depositions will be provided upon request. FEES FOR EXPENSES 1. Items as follows are invoiced at cost plus 10% - subcontract services, travel expenses, reproduction, consumables, and telephone charges. 2. Mileage is invoiced at the rate of thirty cents per mile. 3. Equipment Fee - an incidental fee to cover the. cost of calibration and maintenance of noise measurement instrumentation and computer equipment is invoiced at the rate of 15% of the total labor fee for each assignment involving noise measurements and computer applications. It should be noted that the foregoing wage rates are effective through December 31, 1990. The rates will be adjusted after that date to compensate for cost od living. Compensation for services rendered shall not exceed maximum of fifteen thousand dollars ($15,000.00) based on 1990 - 1991 fiscal year budget. 18 EXHIBIT "B" SPECIAL REQUIREMENTS 1. Pursuant to Section 4.2 of this Agreement, Christine Shingleton is designated as Contract Officer 2. The professional liability insurance coverage as required in Section 5.2 is hereby waived. 3. The performance bond as required in Section 5.3 is hereby waived. 19