02-04-2020 - AGENDA ITEM 03 CONSIDERATION OF AGREEMENT WITH NICHOLS CONSULTING ENGINEERS, CHTD. TO UPDATE THE CITYWIDE PAVEMENT MANAGEMENT PROGRAM (CITY PROJECT NO. 20003)11/16/2020
Print Staff Report
AGENDA ITEM NO.3
DATE: February 4, 2020
TO: Mayor and City Council
FROM: David Carmany
City Manager
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
SUBJECT: CONSIDERATION OF AGREEMENT WITH NICHOLS CONSULTING ENGINEERS,
CHTD. TO UPDATE THE CITYWIDE PAVEMENT MANAGEMENT PROGRAM (CITY
PROJECT NO.20003)
RECOMMENDATION:
It is recommended that the City Council:
1. Approve a Professional Services Agreement with Nichols Consulting Engineers, Chtd. (NCE) in the
amount of $67,500 to update the City's Pavement Management Program (PMP); and
2. Authorize the City Manager to execute the agreement.
BACKGROUND:
Adequate street maintenance is necessary to protect the original investment in the asset and to furnish
maximum service to the users. To delay maintenance work will hasten the day when an entirely new paving
job will be necessary. Maintenance work should therefore be given as much consideration as new
construction, and the material used should be selected with the same caution as if it were intended for a new
pavement. Maintenance is a continuous process requiring a rational system by which needs are addressed.
pavement management program provides a formal systematic approach to assessing, monitoring, and
managing the condition of highway pavements in the most cost-effective manner.
DISCUSSION:
In order to receive Federal funding for street rehabilitation projects, it is mandated that every mile of eligible
Federal -Aid highway within the City (major arterials) be managed with a Pavement Management Program
(PMP). Eligibility for State Proposition C funding also requires that a PMP be implemented and updated
every three years. The results of the study help determine the most appropriate locations and the optimum
approach to pavement rehabilitation.
A basic PMP involves dividing the City's street network into segments of approximately one -block lengths.
The segments are evaluated by counting the number of cracks, measuring the size and type of cracking and
collecting other pavement surface information. The measurements are analyzed mathematically and each
segment is given a condition rating number (between 0 and 100) that is used to rank the streets in the order of
their conditions. Combined with data on traffic volumes and pavement thicknesses, the program processes the
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concerning this Agreement or the work hereunder may be provided by personal delivery,
facsimile, Email or by U.S. mail. If by U.S. mail, it shall be addressed as set forth below and placed
in a sealed envelope, postage prepaid, and deposited in the United States Postal Service. Such
communication shall be deemed served or delivered: a) at the time of delivery if such
communication is sent by personal delivery; b) at the time of transmission if such communication
is sent by facsimile or by Email; and c) 72 hours after deposit in the U.S. Mail as reflected by the
official U.S. postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT: IF TO CITY:
Nichols Consulting Engineers, Chtd. City of West Covina
17050 Bushard Street, Suite #200 1444 West Garvey Ave. South
Fountain Valley, CA 92708 West Covina, CA 91790
Tel: (714) 848-8897 Tel: (626) 939-8422
Email: cpalmerance.net Email: jnderson@westcovina.org
Attn: Charlene Palmer Attn: Jeff Anderson
6.5. Attorneys' Fees. If litigation is brought by any party in connection with this
Agreement against another party, the prevailing party shall be entitled to recover from the
opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of
any of the terms, conditions, or provisions hereof.
6.6. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of California without giving effect to that body of laws pertaining to conflict of
laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto
agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Los
Angeles County, California.
6.7. Assignment. Consultant shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without
City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall
be void and shall constitute a breach of this Agreement and cause for termination of this
Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant
of Consultant's obligation to perform all other obligations to be performed by Consultant
hereunder for the term of this Agreement.
6.8. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify,
hold free and harmless the City, its elected and appointed officials, officers, agents and
employees, at Consultant's sole expense, from and against any and all claims, demands, actions,
suits or other legal proceedings brought against the City, its elected and appointed officials,
officers, agents and employees arising out of the performance of the Consultant, its employees,
and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The
defense obligation provided for hereunder shall apply without any advance showing of negligence
or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be
required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors,
omissions or misconduct of the Consultant, its employees, and/or authorized subcontractors,
and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected
and appointed officials, officers, agents and employees based upon the work performed by the
Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or
not the Consultant, its employees, and/or authorized subcontractors are specifically named or
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otherwise asserted to be liable. Notwithstanding the foregoing, the Consultant shall not be liable
for the defense or indemnification of the City for claims, actions, complaints or suits arising out of
the sole active negligence or willful misconduct of the City. This provision shall supersede and
replace all other indemnity provisions contained either in the City's specifications or Consultant's
Proposal, which shall be of no force and effect.
6.9. Independent Contractor. Consultant is and shall be acting at all times as an
independent contractor and not as an employee of City. Consultant shall have no power to incur
any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of
Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time,
or in any manner, represent that it or any of its or employees are in any manner agents or
employees of City. Consultant shall secure, at its sole expense, and be responsible for any and
all payment of Income Tax, Social Security, State Disability Insurance Compensation,
Unemployment Compensation, and other payroll deductions for Consultant and its officers,
agents, and employees, and all business licenses, if any are required, in connection with the
services to be performed hereunder. Consultant shall indemnify and hold City harmless from any
and all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with the applicable
worker's compensation laws. City shall have the right to offset against the amount of any fees due
to Consultant under this Agreement any amount due to City from Consultant as a result of
Consultant's failure to promptly pay to City any reimbursement or indemnification arising under
this paragraph.
6.10. PERS Eligibility Indemnification. In the event that Consultant or any employee,
agent, or subcontractor of Consultant providing services under this Agreement claims or is
determined by a court of competent jurisdiction or the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant or its employees, agents, or
subcontractors, as well as for the payment of any penalties and interest on such contributions,
which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or
ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors
providing service under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to
any contribution to be paid by City for employer contribution and/or employee contributions for
PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to
Consultant's performance or services rendered under this Agreement, Consultant shall render
any reasonable assistance and cooperation which City might require.
6.12. Ownership of Documents. All findings, reports, documents, information and data
including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by
Consultant or any of its subcontractors in the course of performance of this Agreement, shall be
and remain the sole property of City. Consultant agrees that any such documents or information
shall not be made available to any individual or organization without the prior consent of City. Any
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use of such documents for other projects not contemplated by this Agreement, and any use of
incomplete documents, shall be at the sole risk of City and without liability or legal exposure to
Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses,
and expenses, including attorneys' fees, arising out of or resulting from City's use of such
documents for other projects not contemplated by this Agreement or use of incomplete documents
furnished by Consultant. Consultant shall deliver to City any findings, reports, documents,
information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes
or any other related items as requested by City or its authorized representative, at no additional
cost to the City. Consultant or Consultant's agents shall execute such documents as may be
necessary from time to time to confirm City's ownership of the copyright in such documents.
6.13. Electronic Safeguards. Contractor shall identify reasonably foreseeable internal
and external risks to the privacy and security of personal information that could result in the
unauthorized disclosure, misuse, alteration, destruction or other compromise of the information.
Contractor shall regularly assess the sufficiency of any safeguards and information security
awareness training in place to control reasonably foreseeable internal and external risks, and
evaluate and adjust those safeguards in light of the assessment.
6.14. Economic Interest Statement. Consultant hereby acknowledges that pursuant to
Government Code Section 87300 and the Conflict of Interest Code adopted by City, Consultant
is designated in said Conflict of Interest Code and is therefore required to file an Economic Interest
Statement (Form 700) with the City Clerk, for each employee providing advice under this
Agreement, prior to the commencement of work, unless waived by the City Manager.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and
subconsultants, if any, will comply with all conflict of interest statutes of the State of California
applicable to Consultant's services under this agreement, including, but not limited to, the Political
Reform Act of 1974 (Government Code Section 81000, et seq.) and Government Code Sections
1090-1092. Consultant covenants that none of Consultant's officers or principals have any interest
in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree
with the performance of the services hereunder, including in any manner in violation of the Political
Reform Act. Consultant further covenants that in the performance of this Agreement, no person
having such interest shall be used by Consultant as an officer, employee, agent, or subconsultant.
Consultant further covenants that Consultant has not contracted with nor is performing any
services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s)
and/or partnership(s) owning property in the City and further covenants and agrees that
Consultant and/or its subconsultants shall provide no service or enter into any agreement or
agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s)
owning property in the City prior to the completion of the work under this Agreement.
6.16. Prohibited Employment. Consultant will not employ any regular employee of City
while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any
of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent
this Agreement incorporates by reference any provision of any document, such provision shall be
deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and
conditions of this Agreement and those of any such provision or provisions so incorporated by
reference, this Agreement shall govern over the document referenced.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation
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and negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
6.19. No Third Party Beneficiary Rights. This Agreement is entered into for the sole
benefit of City and Consultant and no other parties are intended to be direct or incidental
beneficiaries of this Agreement and no third party shall have any right in, under or to this
Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
6.21. Amendments. Only a writing executed by the parties hereto or their respective
successors and assigns may amend this Agreement.
6.22. Waiver. The delay or failure of either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this Agreement shall be effective unless in writing and signed by a duly authorized representative
of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy
in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in
respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable in any circumstance, such determination shall not
affect the validity or enforceability of the remaining terms and provisions hereof or of the offending
provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement,
based upon the substantial benefit of the bargain for any party, is materially impaired, which
determination made by the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith negotiations.
6.24. Counterparts and Electronic Signatures. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original. All counterparts shall be
construed together and shall constitute one agreement. Counterpart written signatures may be
transmitted by facsimile, email or other electronic means and have the same legal effect as if they
were original signatures.
6.25. 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 doing so the parties hereto are formally bound to the provisions of this
Agreement.
6.26 Taxpayer Identification Number. Consultant shall provide City with a complete
Request for Taxpayer Identification Number and Certification, Form W9, as issued by the Internal
Revenue Service.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by and through their respective authorized officers, as of the date first above written.
CITY OF WEST COVINA,
A municipal corporation
Date:
David Carmany
City Manager
NICHOLS CONSULTING ENGINEERS, CHTD.
Nevada Corporation
t y Date: 1/29/2020
Signature
Charlene R Palmer, Principal
Name and Title
Signature
Name and Title
ATTEST:
Lisa Sherrick
Assistant City Clerk
APPROVED AS TO FORM:
Thomas P. Duarte
City Attorney
APPROVED AS TO INSURANCE:
Date:
Helen Tran
Risk Management
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Date:
Date:
Nichols Consulting Engineers, Chtd.
EXHIBIT A
SCOPE OF SERVICES
The following is a general outline of the scope of work to be provided by the Consultant. While it
is believed that this scope includes all elements essential to complete the 2019 update, proposing
firms are advised to include any items that they believe may be necessary to complete the project.
Proposing firms may also note any required items that they believe may be excessive or
unnecessary. The cost of such items should be separately noted in their proposals. Services
required to complete this update shall include:
1. Meet with City staff to finalize scope of work, establish key personnel, review project schedule
and address any issues.
2. Review all maintenance and rehabilitation activities conducted by the City since the last PMP
update. Update database to include all street segments and alleys that have been
rehabilitated since 2015. City staff will provide a hardcopy of list of streets and alleys
reconstructed, overlaid or slurry sealed since 2015.
3. Conduct a comprehensive visual pavement condition (walking surveys) of all streets and
alleys in the City (excluding private streets). These are performed with one -person crews (for
high volume streets like expressways or major arterials, two -person crews may be needed for
safety). The major advantage of this survey method is that it is more accurate than Wind
Shield Surveys, since cracks and all other pavement distresses are measured and recorded.
Pavement condition surveys shall be performed in accordance with the established standards
as identified by ASTM D-6433.
The City has approximately 176 centerline miles of local streets and alleys, 42 centerline miles
of arterial highways and 27 centerline miles of collector streets. The survey shall include the
following information: alligator cracking, block cracking, distortions, longitudinal and
transverse cracking, patching and utility cuts, rutting, depressions, weathering, and raveling.
Automated distress surveys and semi -automated distress surveys will be considered. This
involves the utilization of video enhanced laser RST, which includes the use of lasers, video
imaging and trained operator input. The survey will involve rating 100% of the roadway
surface. Only one survey method shall be allowed to perform this task. The survey methods
are not interchangeable. The selected consultant shall be responsible for providing all man
power needed and all equipment necessary. Beside that, the consultant shall submit a Quality
Control Plan and be prepared to discuss this at the pre -data collection meeting. This plan shall
describe the measures used by the consultant to guarantee accuracy and repeatability.
4. Update and develop PMP to provide the following output:
a. Pavement Inventory. Inventory shall include segments of streets arranged
continuously from west to east and from south to north.
b. Pavement Condition Index (PCI) per segment and overall.
c. Identification of all segments and Improvement Strategies for each segment.
d. Cost -Benefit Analyses to identify treatments and budget needs.
e. Priority Listing.
f. GIS layer or AutoCAD based map showing PCI's and proposed rehabitition
program over the next 7 years.
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5. City's current PMP is Street Saver Online (https://www.streetsaver.com/). Consultant shall be
qualified to use and update City's Street Saver online database.
6. Prepare a Pavement Condition Report that identifies the present condition of the pavement
and future performance for the next seven years based on performance prediction modeling
and local conditions. It shall identify the form, condition and causes of pavement failure (if
possible). The report shall integrate and incorporate into its analysis the surface distress,
roughness, rut, raveling condition, crack condition, drainage condition, utility cuts, street
sections, functional classification, ride quality, traffic volume, overall condition rating, etc.
7. Prepare a Pavement Improvement Report indicating maintenance and rehabilitation (M&R)
strategies necessary to achieve the desired level of serviceability. The consultant shall
recommend strategies and unit costs based on local conditions and explain advantages and
disadvantages of each strategy. The report shall make provisions for simultaneously
analyzing the effectiveness of numerous M&R strategies including preventive and corrective
maintenance, recycling alternatives, and surface and base reconstruction.
8. Prepare a Priority Listing indicating pavements in order of best to worst PCI. In addition, the
consultant shall prepare a priority listing of projects to be completed within seven years based
on cost -benefit analyses of individual strategies, present pavement conditions, current traffic
volumes, current funding levels, accrued backlog levels and future major and routine
maintenance needs.
9. Prepare the seven-year rehabilitation program to include the following:
• Each fiscal year projects of arterial streets.
• Each fiscal year projects of residential streets and alleys. It is desirable, where applicable, to
identify residential streets included in one fiscal year project(s) to be located in the same
neighborhood in accordance with the requirements set forth in Item 8 above.
10. Prepare an Executive Summary to include objectives for a sound PMP, field data collection
techniques, data necessary to generate a reliable PMP, assessment and evaluation of results,
present condition of streets and M&R strategies proposed, conclusions and
recommendations. Executive summary shall include a diagraim of three scenarios considering
different funding levels, proposed rehabitation program, overall PCI and backlog.
11. Provide City staff with on -site training in the operations and maintenance of PMP software.
The training shall cover data collection, pavement condition surreys, computer operations,
data entry/editing, PCI calculations, budget needs analyses, budget optimization analyses,
report generation and database management.
12. Conduct a presentation of the results of the PMP to designated City personnel and/or
elected officials.
TASK I — MEETING WITH CITY STAFF:
1. Attend preliminary meeting with City staff. The purpose of this meeting is to review the
technical approach, finalize scope of work, review project schedule and budget, obtain list of
recently completed rehabilitation projects (since 2015) and address any other project related
issues.
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2. Review all documents provided by the City necessary to complete the work. The City will
provide the following:
• Access to all available information, including street inventory, City maps, historical
information, maintenance information, and historical cost information.
• August 2015, PMP Update prepared by Nichols Consulting, Inc.
• Hard copy of list of City streets and alley segments that have been rehabilitated since August
2015.
• Hosting of progress meetings.
The consultant shall be responsible to review the available information and reproduce them at no
cost to the City.
TASK II — UPDATE MAINTENANCE AND REHABILITATION ACTIVITIES:
1. Review recently completed maintenance and rehabilitation activities since last update in
August 2015.
2. Update PMP database to reflect improvements in Item 1.
TASK III — PAVEMENT SURVEY AND TREATMENT:
1. Conduct comprehensive pavement condition survey of the City's pavement network. The
City's pavement network includes approximately 245 centerline miles of arterial highways,
streets and alleys.
2. Specify distress types for each City street segment included in the survey.
3. Select the appropriate treatment or rehabilitation strategy for each City street included in the
survey.
TASK IV — BUDGETARY ANALYSIS AND REPORTS:
1. Update pavement inventory based on information obtained in TASK III.
2. Update PCI for all street segments and overall pavement network in the City.
3. Specify treatment of all segments of City streets.
4. Analyze budget scenarios and needs.
5. Prepare priority lists and a seven-year maintenance and rehabilitation project list.
6. Prepare Executive Summary.
7. Prepare GIS layer or AutoCAD based map showing PCI's and 7-year rehabition program.
TASK V — PRESENTATION:
1. Prepare presentation of PMP to City staff.
2. Prepare a 15-minute (non -technical) presentation to City Council.
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EXHIBIT B
FEE SCHEDULE
Attachment B
Revised Fee Proposal
COSTPROPOSAL
PROPOSAL
PROFESSIONAL ENGINEERING SERVICES FOR THE
CITYWIDE PAVEMENT MANAGEMENT PROGRAM - 2019 UPDATE
CITY OF WEST COVINA, CALIFORNIA
Reimbursable Expenses:
Task 1-Meeting with City Staff Travel
Task 2- Update Maintenance and Rehabilitation Activities None
Task 3 - Pavement Survey and Treatment Vehicle Cost per day, per diem $ 6,080
Task 4- Budgetary Analysis and Reports Final Reports for City $ -
Task 5 - Presentation` Presentation Materials and Travel 5 190
Trmnmg Training Manuals and Travel 5 GGO
Assumptions:
Task 1 assumes video conference kickoff meeting.
Task 3 assumes 245 centerline miles of streets and alleys.
Tack 4 assumes GIs shapefiles provided by City
"Task 5 assumes 2 - one four hour on-line training class plus onn presentation
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Schedule
EXHIBIT C
PROJECT SCHEDULE
CITY OF WEST COVINA
CITYWIDE PAVEMENT MANAGEMENT PROGRAM - 2019 UPDATE
Project Schedule
AssumPtktm
NTP = Notice to Proceed
Task III assumes no weather delays
Task III assumes 7 weeks and 2 weeks QC
Task IV assumes 2 weeks for city review
Task V assumes 2 - 4 hour training classes on dates To Be Determined (TBD)'
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Print Staff Report
condition data and produces recommendations for which streets to repair, in what order, the optimum method
of repair, and the estimated costs. The information is used to prioritize and schedule street rehabilitation
through the long range Capital Improvement Program (CIP) and budget process. Local streets are also
monitored and managed by the PMP.
The last comprehensive update of the City's PMP was completed in August 2015 by Nichols Consulting
Engineers, Chtd. (NCE). The PMP document presents findings and recommendations from a pavement
condition survey of City's street network including pavement condition summaries, preservation and repair
activities, and projected budgets for those activities. On November 7, 2019, staff issued Request for Proposals
for the Citywide Pavement Management Program — 2019 Update.
On December 2, 2019, staff received proposals from two consulting firms:
Consultant Location
IMS Infrastructure Management Services Tempe, AZ
Nicholas Consulting Engineers, Chtd. (NCE) Fountain Valley, CA
The proposals were reviewed by staff for completeness, relevant experience, scope of services provided,
qualifications of proposed project team, proposed schedule and cost-effectiveness. After review, staff
determined that the proposal from NCE was the most comprehensive and demonstrated the best understanding
of the information and recommendations to be included in the PMP update. NCE has extensive experience in
developing and implementing pavement management programs for over 200 municipalities in California,
including the neighboring cities of Buena Park, Commerce, Corona, Diamond Bar, La Habra, San Dimas, San
Gabriel and Whittier. NCE has also completed the latest PMP update for the City of West Covina in 2015 and
thus is familiar with the City's street network and existing street saver database.
NCE's original proposal to complete the 2019 update was $72,350; however, staff was able to negotiate their
fee down to $67,500 without any changes in their scope of services. Staff is recommending that the City
Council approve a professional services agreement with NCE in the amount of $67,500 to update the City's
PMP.
Fiscal Impact
FISCAL IMPACT:
The total approved budget for this project is $75,000 with funding coming from Gas Tax (Account No.
20003.124.7200). There are sufficient funds available in this account to cover NCE's contract amount and no
General Fund monies will be used for the contract.
Attachments
Attachment No. 1 - Professional Services Agreement with NCE
CITY Enhance City Facilities and Infrastructure
COUNCIL Enhance the City Image and Effectiveness
GOALS & Protect Public Safety
OBJECTIVES:
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ATTACHMENT NO. 1
CITY OF WEST COVINA
PROFESSIONAL SERVICES AGREEMENT
WITH
NICHOLS CONSULTING ENGINEERS, CHTD.
FOR
THE CITYWIDE PAVEMENT MANAGEMENT PROGRAM — 2019 UPDATE
THIS AGREEMENT is made and entered into this 4th day of February, 2020 ("Effective
Date"), by and between the CITY OF WEST COVINA, a municipal corporation ("City"), and
"NICHOLS CONSULTING ENGINEERS, CHTD.", a Nevada Corporation ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to utilize the services of Consultant as an independent
contractor to City to update the Citywide Pavement Management Program, as more fully
described herein; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise
contemplated within California Government Code Section 37103, and holds all necessary
licenses to practice and perform the services herein contemplated, except that if Consultant is
required to but does not yet hold a City business license, it will promptly obtain a business license
and will not provide services to the City until it has done so; and
C. WHEREAS, City and Consultant desire to contract for the specific services
described in Exhibit "A" and desire to set forth their rights, duties and liabilities in connection with
the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the
provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this
Agreement.
E. WHEREAS, Consultant responded to the City's Request for Proposals dated
November 7, 2019, incorporated via this reference as if fully set forth herein, and Consultant's
response to the Request for Proposals was a material inducement to the City ultimately entering
into this agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described
in the Scope of Services attached hereto as Exhibit "A," incorporated herein by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel experienced in their respective fields
and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by
professional consultants in similar fields and circumstances in accordance with sound
professional practices. Consultant also warrants that it is familiar with all laws that may affect its
performance of this Agreement and shall advise City of any changes in any laws that may affect
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Consultant's performance of this Agreement. Consultant shall keep itself informed of State and
Federal laws and regulations which in any manner affect those employed by it or in any way affect
the performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations. City officers and employees shall not be
liable at law or in equity for any claims or damages occurring as a result of failure of the Consultant
to comply with this section.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to
the reasonable satisfaction of the City. Evaluations of the work will be conducted by the City
Manager or his or her designee. If the quality of work is not satisfactory, City in its discretion has
the right to:
(a) Meet with Consultant to review the quality of the work and resolve the
matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is
satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this
Agreement in compliance with all applicable Federal and California employment laws, including,
but not limited to, those laws related to minimum hours and wages; occupational health and
safety; fair employment and employment practices; workers' compensation; and all other Federal,
State and local laws and ordinances applicable to the services required under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in,
nor permit its agents to engage in, discrimination in employment of persons because of their race,
religion, color, national origin, ancestry, age, physical or mental disability, medical condition,
genetic information, pregnancy, marital status, sex, gender, gender identity, gender expression,
sexual orientation, or military or veteran status, except as permitted pursuant to Section 12940 of
the Government Code.
1.6. Non -Exclusive Agreement. Consultant acknowledges that City may enter into
agreements with other consultants for services similar to the services that are subject to this
Agreement or may have its own employees perform services similar to those services
contemplated by this Agreement.
1.7. Confidentiality. Employees of Consultant in the course of their duties may have
access to financial, accounting, statistical, and personnel data of private individuals and
employees of City. Consultant covenants that all data, documents, discussion, or other
information developed or received by Consultant or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data shall be
returned to City upon the termination of this Agreement. Consultant's covenant under this Section
shall survive the termination of this Agreement.
1.8 Public Records Act Disclosure. Consultant has been advised and is aware that
this Agreement and all reports, documents, information and data, including, but not limited to,
computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors,
pursuant to this Agreement and provided to City may be subject to public disclosure as required
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by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade
secrets, as that term is defined in California Government Code Section 6254.7, and of which
Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all
information obtained by it that is designated as a trade secret. The City shall not, in any way, be
liable or responsible for the disclosure of any trade secret including, without limitation, those
records so marked if disclosure is deemed to be required by law or by order of the court.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the fee schedule set
forth in Exhibit "B," attached hereto and made a part of this Agreement (the "Fee Schedule").
Consultant's total compensation shall not exceed Sixty Seven Thousand Five Hundred Dollars ($
67,500.00).
2.2. Additional Services. Consultant shall not receive compensation for any services
provided outside the scope of services unless the City, prior to Consultant performing the
additional services, approves such additional services in writing. It is specifically understood that
oral requests and/or approvals of such additional services or additional compensation shall be
barred and are unenforceable. Should the City request in writing additional services that increase
the Scope of Services, an additional fee based upon the Consultant's standard hourly rates shall
be paid to the Consultant for such additional services. Such increase in additional fees shall be
limited to 25% of the total contract sum or to the maximum total contract amount of $25,000,
whichever is greater. The Department Head or City Manager is authorized to approve a Change
Order for such additional services.
2.3. Method of Billing. Consultant may submit invoices to the City for approval on a
progress basis, but no more often than once a month. Said invoice shall be based on the total of
all Consultant's services which have been completed to City's sole satisfaction. City shall pay
Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each
invoice shall describe in detail the services performed, the date of performance, and the
associated time for completion. Any additional services approved and performed pursuant to this
Agreement shall be designated as "Additional Services" and shall identify the number of the
authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement
shall be maintained in accordance with generally recognized accounting principles and shall be
made available to City for inspection and/or audit at mutually convenient times from the Effective
Date until three (3) years after the termination or expiration of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. Unless otherwise agreed to by the
parties, the professional services to be performed pursuant to this Agreement shall commence
within five (5) days from the Effective Date of this Agreement. Said services shall be performed
in strict compliance with the Project Schedule approved by City as set forth in Exhibit "C," attached
hereto and incorporated herein by this reference. The Project Schedule may be amended by
mutual agreement of the parties. Failure to commence work in a timely manner and/or diligently
pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
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performance resulting from acts beyond the reasonable control of the party or parties. Such acts
shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with
laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a
party. If a delay beyond the control of the Consultant is encountered, a time extension may be
mutually agreed upon in writing by the City and the Consultant. The Consultant shall present
documentation satisfactory to the City to substantiate any request for a time extension.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue for a
period of twelve months, ending on February 4, 2021, unless previously terminated as provided
herein or as otherwise agreed to in writing by the parties.
4.2. Notice of Termination. The City reserves and has the right and privilege of
canceling, suspending or abandoning the execution of all or any part of the work contemplated
by this Agreement, with or without cause, at any time, by providing at least fifteen (15) days prior
written notice to Consultant. In the event of such termination, Consultant shall immediately stop
rendering services under this Agreement unless directed otherwise by the City. If the City
suspends, terminates or abandons a portion of this Agreement such suspension, termination or
abandonment shall not make void or invalidate the remainder of this Agreement.
If the Consultant defaults in the performance of any of the terms or conditions of this
Agreement, it shall have ten (10) days after service upon it of written notice of such default in
which to cure the default by rendering a satisfactory performance. In the event that the Consultant
fails to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement, to terminate this Agreement without further notice and
without prejudice to any other remedy to which it may be entitled to at law, in equity, or under this
Agreement.
The City also shall have the right, notwithstanding any other provisions of this Agreement,
to terminate this Agreement, at its option and without prejudice to any other remedy to which it
may be entitled to at law, in equity, or under this Agreement, immediately upon service of written
notice of termination on the Consultant, if the latter should:
a. Be adjudged a bankrupt;
b. Become insolvent or have a receiver of its assets or property appointed
because of insolvency;
C. Make a general assignment for the benefit of creditors;
d. Default in the performance of any obligation or payment of any
indebtedness under this Agreement;
e. Suffer any judgment against it to remain unsatisfied or unbonded of record
for thirty (30) days or longer; or
f. Institute or suffer to be instituted any procedures for reorganization or
rearrangement of its affairs.
4.3. Compensation. In the event of termination, City shall pay Consultant for
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reasonable costs incurred and professional services satisfactorily performed up to and including
the effective date of the City's written notice of termination, within forty-five (45) days after the
effective date of the notice of termination or the final invoice of the Consultant, whichever occurs
last. Compensation for work in progress shall be prorated based on the percentage of work
completed as of the effective date of termination in accordance with the fees set forth herein.
4.4. Documents. In the event of termination of this Agreement, all documents prepared
by Consultant in its performance of this Agreement including, but not limited to, finished or
unfinished design, development and construction documents, data studies, drawings, maps and
reports, shall be delivered to the City within ten (10) days of the effective date of the notice of
termination, at no cost to City.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and
keep in full force and effect during the life of this Agreement all of the following minimum scope
of insurance coverages with an insurance company admitted to do business in California, with a
current A.M. Best's rating of no less than A:VII, and approved by City:
(a) Broad -form commercial general liability, including premises -operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury or bodily injury
with a policy limit of not less than Two Million Dollars ($2,000,000.00),
combined single limits, per occurrence. If such insurance contains a
general aggregate limit, it shall apply separately to this Agreement or shall
be twice the required occurrence limit.
(b) Business automobile liability for owned vehicles, hired, and non -owned
vehicles, with a policy limit of not less than One Million Dollars
($1,000,000.00), combined single limits, per accident for bodily injury and
property damage.
(c) Workers' compensation insurance as required by the State of California,
with Statutory Limits, and Employer's Liability Insurance with a limit of no
less than One Million Dollars ($1,000,000.00) per accident for bodily injury
or disease. Consultant agrees to waive, and to obtain endorsements from
its workers' compensation insurer waiving subrogation rights under its
workers' compensation insurance policy against the City, its officers,
agents, employees, and volunteers for losses arising from work performed
by Consultant for the City and to require each of its subcontractors, if any,
to do likewise under their workers' compensation insurance policies.
By execution of this Agreement, the Consultant certifies as follows
I am aware of, and will comply with, Section 3700 of the Labor
Code, requiring every employer to be insured against liability of
Workers' Compensation or to undertake self-insurance before
commencing any of the work.
The Consultant shall also comply with Section 3800 of the Labor Code by
securing, paying for and maintaining in full force and effect for the duration
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of this Agreement, complete Workers' Compensation Insurance, and shall
furnish a Certificate of Insurance to the City before execution of this
Agreement by the City. The City, its officers and employees shall not be
responsible for any claims in law or equity occasioned by failure of the
consultant to comply with this section.
(d) Professional errors and omissions ("E&O") liability insurance with policy
limits of not less than One Million Dollars ($1,000,000.00), combined single
limits, per occurrence or claim, and Two Million Dollars ($2,000,000.00)
aggregate. Architects' and engineers' coverage shall be endorsed to
include contractual liability. If the policy is written as a "claims made" policy,
the retroactivity date shall be prior to the start of the work set forth herein.
Consultant shall obtain and maintain said E&O liability insurance during the
life of this Agreement and for five (5) years after completion of the work
hereunder. If coverage is canceled or non -renewed, and not replaced with
another claims -made policy form with a retroactive date prior to the
effective date of this Agreement, Consultant shall purchase "extended
reporting" coverage for a minimum of five (5) years after completion of the
work.
If the Consultant maintains higher limits or has broader coverage than the minimums
shown above, the City requires and shall be entitled to all coverage, and to the higher limits
maintained by the Consultant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
5.2. Endorsements. The insurance policies are to contain, or be endorsed to contain,
the following provisions:
(a) Additional Insureds: The City of West Covina and its elected and appointed
boards, officers, officials, agents, employees, and volunteers are additional
insureds with respect to: liability arising out of activities performed by or on
behalf of the Consultant pursuant to its contract with the City; products and
completed operations of the Consultant; premises owned, occupied or
used by the Consultant; automobiles owned, leased, hired, or borrowed by
the Consultant.
(b) Notice of Cancelation: Each insurance policy required above shall provide
that coverage shall not be canceled, except with notice to the City.
(c) Primary Coverage: The Consultant's insurance coverage shall be primary
insurance as respects the City of West Covina, its officers, officials, agents,
employees, and volunteers. Any other insurance maintained by the City of
West Covina shall be excess and not contributing with the insurance
provided by this policy.
(d) Waiver of Subrogation: Consultant hereby grants to City a waiver of any
right to subrogation which any insurer of said Consultant may acquire
against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to
affect this waiver of subrogation, but this provision applies regardless of
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whether or not the City has received a waiver of subrogation endorsement
from the insurer.
(e) Coverage Not Affected: Any failure to comply with the reporting provisions
of the policies shall not affect coverage provided to the City of West Covina,
its officers, officials, agents, employees, and volunteers.
(f) Coverage Applies Separately: The Consultant's insurance shall apply
separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability.
5.3. Deductible or Self Insured Retention. If any of such policies provide for a
deductible or self -insured retention to provide such coverage, the amount of such deductible or
self -insured retention shall be approved in advance by City. The City may require the Consultant
to purchase coverage with a lower retention or provide proof of ability to pay losses and related
investigations, claim administration, and defense expenses within the retention. The policy
language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied
by either the named insured or City.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance
showing the insurance coverages and required endorsements described above, in a form and
content approved by City, prior to performing any services under this Agreement. The City
reserves the right to require complete, certified copies of all required insurance policies, including
endorsements required by these specifications, at any time.
5.5. Non -limiting. Nothing in this Section shall be construed as limiting in any way the
indemnification provision contained in this Agreement.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to any matter referenced herein and supersedes any and all other prior
writings and oral negotiations. This Agreement may be modified only in writing, and signed by the
parties in interest at the time of such modification.
6.2. Representatives. The City Manager or his or her designee shall be the
representative of City for purposes of this Agreement and may issue all consents, approvals,
directives and agreements on behalf of the City, called for by this Agreement, except as otherwise
expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who
shall be authorized to issue all consents, approvals, directives and agreements on behalf of
Consultant called for by this Agreement, except as otherwise expressly provided in this
Agreement.
6.3. Key Personnel. It is the intent of both parties to this Agreement that Consultant
shall make available the professional services of Charlene Palmer. Princigal, who shall coordinate
directly with City. Any substitution of key personnel must be approved in advance in writing by
City's Representative.
6.4. Notices. Any notices, documents, correspondence or other communications
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