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HomeMy WebLinkAboutCotton, Shires and Associates, Inc. (9)AGREEMENT THIS AGREEMENT is made and entered into on the 14th day of July, 2023, by and between the TOWN OF LOS ALTOS HILLS (hereinafter referred to as "TOWN") and Cotton, Shires and Associates, Inc. (hereinafter referred to as "CONTRACTOR"). In consideration of their mutual covenants, the parties hereto agree as follows: 1. CONTRACTOR. Shall provide or furnish the following specified services and/or materials: Geotechnical Construction Observation and Testing Services for E. Sunset Widening Improvements (Pass - Through Services) 2. EXHIBITS. The following attached exhibits are hereby incorporated into and made a part of this Agreement: Proposal from CONTRACTOR dated June 13, 2023 3. TERMS. The services and/or materials furnished under this Agreement shall commence July 11, 2023, and shall be completed by December 31, 2023, unless terminated pursuant to Section 5(f). 4. COMPENSATION. For the full performance of this Agreement: a. TOWN shall pay CONTRACTOR an amount not to exceed Fourth Five Thousand dollars and zero cents ($45,000.00) within thirty (30) days following receipt of invoice and completion/delivery of services/goods as detailed in Sections 1, 2, and 3 of this Agreement and only upon satisfactory delivery/completion of goods/services in a manner consistent with professional/industry standards for the area in which CONTRACTOR operates. TOWN is not responsible for paying for any work done by CONTRACTOR or any subcontractor above and beyond the not to exceed amount. b. Town shall not reimburse for any of CONTRACTOR's costs or expenses to deliver any services/goods. Town shall not be responsible for any interest or late charges on any payments from Town to CONTRACTOR. c. CONTRACTOR is responsible for monitoring its own forces/employees/agents/ subcontractors to ensure delivery of goods/services within the terms of this Agreement. TOWN will not accept or compensate CONTRACTOR for incomplete goods/services. Town of Los Altos Hills Page 1 of 5 Short form Updated 4/26/22 5. GENERAL TERMS AND CONDITIONS. a. HOLD HARMLESS. CONTRACTOR agrees to indemnify, defend and hold harmless the TOWN, its officers, agents and employees from any and all demands, claims or liability of personal injury (including death) and property damage of any nature, caused by or arising out of the performance of CONTRACTOR under this Agreement. With regard to CONTRACTOR'S work product, CONTRACTOR agrees to indemnify, defend and hold. harmless the TOWN, its officers, agents and employees from any and all demands, claims or liability of any nature to the extent caused by the negligent performance of CONTRACTOR under this Agreement. b. INSURANCE. CONTRACTOR shall file with the TOWN a certificate of insurance before commencing any services under this Agreement as follows: WORKERS COMPENSATION INSURANCE: Minimum statutory limits COMMERCIAL GENERAL LIABILITY AND PROPERTY DAMAGE INSURANCE: General Liability and Property Damage Combined. $1,000,000.00 per occurrence including comprehensive form, personal injury, broad form personal damage, contractual and premises/operation, all on an occurrence basis. If an aggregate limit exists, it shall apply separately or be no less than two (2) times the occurrence limit. iii. AUTOMOBILE INSURANCE: $1,000,000.00 per occurrence. iv. ERRORS AND OMISSIONS INSURANCE: $1,000,000.00 aggregate. v. NOTICE OF CANCELLATION: The City requires 30 days written notice of cancellation. Additionally, the notice statement on the certificate should not include the wording "endeavor to" or "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives." vi. CERTIFICATE OF INSURANCE: Prior to commencement of services, evidence of insurance coverage must be shown by a properly executed certificate of insurance and it shall name "The Town of Los Altos Hills, its elective and appointed officers, employees, and volunteers" as additional insureds. vii. To prevent delay and ensure compliance with this Agreement, the insurance certificates and endorsements must be submitted to: Town of Los Altos Hills Page 2 of 5 Short form g Updated 4/26/22 Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 c. NON-DISCRIMINATION. No discrimination shall be made in the employment of persons under this Agreement because of the race, color, national origin, age, ancestry, religion or sex of such person. d. INTEREST OF CONTRACTOR. It is understood and agreed that this Agreement is not a contract of employment and does not create an employer-employee relationship between the TOWN and CONTRACTOR. At all times CONTRACTOR shall be an independent contractor and CONTRACTOR is not authorized to bind the TOWN to any contracts or other obligations without the express written consent . of the TOWN. In executing this Agreement, CONTRACTOR certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of TOWN. e. CHANGES. This Agreement shall not be assigned or transferred without advance written consent of the TOWN. No changes or variations of any kind are authorized without the written consent of the City Manager. This Agreement may only be amended by a written instrument signed by both parties. f. TERMINATION. This Agreement may be terminated by TOWN upon seven (7) days written notice to CONTRACTOR. Monies owed for work satisfactorily completed shall be paid to CONTRACTOR within 14 days of termination. g. RECORDS. All reports, data, maps, models, charts, studies, surveys, calculations, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that are prepared or obtained pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the TOWN. CONTRACTOR hereby agrees to deliver those documents to the TOWN at any time upon demand of the TOWN. 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 TOWN and are not necessarily suitable for any future or other use. Failure by CONTRACTOR to deliver these documents to the TOWN within a reasonable time period or as specified by the TOWN shall be a material breach of this Agreement. TOWN and CONTRACTOR agree that until final approval by TOWN, all data, plans, specifications, reports and other documents are preliminary drafts not kept by the TOWN in the ordinary course of business and will not be disclosed to third parties without prior written consent of both parties. All work products submitted to the TOWN pursuant to this Agreement shall be deemed a "work for hire." Upon submission of any work for hire pursuant to this Agreement, and acceptance by the TOWN as complete, non- exclusive title to copyright of said work for hire shall transfer to the TOWN. The compensation recited in Section 4 shall be deemed to be sufficient consideration Town of Los Altos Hills Page 3 of 5 Short form g Updated 4/26/22 for said transfer of copyright. CONTRACTOR retains the right to use any project records, documents and materials for marketing of their professional services. h. CONTRACT ADMINISTRATION. The TOWN hereby designates [insert applicable staff title] and the City Manager as Contract Administrator for this agreement. The CONTRACTOR shall only take direction regarding the services provided under this Agreement from the Contract Administrator. Furthermore, CONTRACTOR agrees that the Contract Administrator shall be included any meeting, teleconference or written communication between .any Town representative including Committee members and the CONTRACTOR. The TOWN may modify the Contract Administrator at any time upon providing written notice to the CONTRACTOR. ENTIRE AGREEMENT. This Agreement represents the entire agreement between the Parties. Any ambiguities or disputed terms between this Agreement and any attached Exhibits shall be interpreted according to the language in this Agreement and not the Exhibits. 6. INVOICING. Send all invoices to the contract coordinator at the address below. This Agreement shall become effective upon its approval and execution by TOWN. In witness whereof, the parties have executed this Agreement the day and year first written above. CONTRACT COORDINATOR and representative for TOWN: Astha Khanal Assistant Engineer Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 Town of Los Altos Hills Short form Updated 4/26/22 CONTRACTOR: David T D191tally slgne by David TSchrlar DN,cn=DaA d T Schrier, 0 -Cotton shires and Schrier Da eA]013A71�0927:331rg¢'�m,4 5 By: July 12, 2023 Signature Date David T Schrier, Vice President Print name, Title TOWN OF LOS ALTOS HILLS: By: (;te—r Pirnejad, Ci y Manager Date Page 4 of 5 Northern California Office Central California Office Southern California Office  330 Village Lane 6417 Dogtown Road 699 Hampshire Road, Suite 101  Los Gatos, CA 95030‐7218 San Andreas, CA 95249‐9640 Thousand Oaks, CA 91361‐2352  (408) 354‐5542 • Fax (408) 354‐1852 (209) 736‐4252 • Fax (209) 736‐1212 (805) 370‐8710      www.cottonshires.com  COTTON, SHIRES AND ASSOCIATES, INC.   CONSULTING ENGINEERS AND GEOLOGISTS June 13, 2023  E6131D   By Email <jchau@losaltoshills.ca.gov> John Chau  Associate Engineer  TOWN OF LOS ALTOS HILLS  26379 Fremont Road  Los Altos Hills, California 94022     SUBJECT: Geotechnical Construction Observation and Testing Services   RE: East Sunset Drive Roadway Improvements    Los Altos Hills, California  REFERENCES: Clarum Homes, Email of Preliminary Construction Schedule, Road  Widening East Sunset Drive, dated June 13, 2023;      Lea & Braze Engineering, Inc., Roadway Widening, East Sunset Drive,  Los Altos Hills, California, CA, Drawing Nos. C1.0 to C4.2, ER‐1 and ER‐ 2, (Sheet 1 to 18) most recent revision dated April 13, 2023;    Dear Mr. Chau:     Cotton, Shires and Associates, Inc. (CSA) is pleased to provide the Town of Los  Altos Hills with this cost estimate for construction observation and testing services.  We  anticipate that our services will include the following: 1) observing slope excavation; 2)  pier drilling and placement of beams, and concrete; 3) observing backdrain installation; 4)  observing and testing pavement subgrade and baserock compaction; and 5) preparing a  construction observation and testing report.      The following table provides our estimated time and cost for performing the above  described tasks and is based on the construction schedule provided to us, and our  experience with retaining wall construction for similar projects.   Estimated   Task Hours Hourly Rate Cost   Slope Excavation Observation ‐ 12 $135 $1,620    Pier Drilling, Beam and Concrete   Installation Observation ‐ 126 $135 $17,010  Mr. John Chau  June 13, 2023  Page 2  E6131D  COTTON, SHIRES AND ASSOCIATES, INC.  Backdrain Installation  Observation ‐ 24 $135 $3,240    Wall Backfill, Pavement Subgrade, Baserock Compaction  Observation and Compaction Testing ‐ 72 $135/$185* $9,720/$13,320*   Subtotal Field $31,590/$35,190*    Reimbursables ‐ Lab Testing, Vehicle, Nuclear Gauge  $1,725    Office Support – Supervision, QA/QC, Consultation (10% of Field) $3,800      Construction Observation and Testing Report $3,100   Subtotal Office $6,900     Total Office, Reimbursables and Field $40,215/$43,815*   *Denotes Cost if the Construction is a Prevailing Wage Project     This cost estimate of $40,215 (or $43,815 if the project is under Prevailing Wage)  is based on the provided Construction Schedule, and includes 11 part‐time site visit and  22 days of full‐time visits for observation of pier drilling, retaining wall construction work,  and backdrain installation, and compaction testing for wall backfill, pavement subgrade,  and baserock, as described above, and should be used for budgeting purposes only.  A  contingency should be added for delays beyond our control, including the weather, the  Contractors’ schedule and ability, and other factors.  Ultimately, our time spent on site  will be determined by the Contractor’s schedule and competency.  If the Contractor is able  to undertake several tasks simultaneously, our time would be reduced.  As usual, the  Town will only be invoiced for the actual hours spent for these tasks.  If, during the course  of construction, it appears that our estimated budget will be exceeded, we will inform you  so that additional written authorization can be obtained prior to completion of any  additional work.                          Mr. John Chau  June 13, 2023  Page 3  E6131D  COTTON, SHIRES AND ASSOCIATES, INC.  LIMITATIONS     Our services consist of professional opinions and conceptual recommendations  made in accordance with generally accepted engineering geology and geotechnical  engineering principles and practices.  No warranty, expressed or implied, or  merchantability or fitness, is made in or intended in connection with our work, by the  proposal for consulting or other services, or by the furnishing of oral or written reports or  findings.      CSA is not the Geotechnical Engineer of Record for this project. CSA did not  investigate the subsurface conditions along the proposed wall alignment and did not  provide geotechnical design criteria recommendations. Our observations and testing will  be to confirm conformance with the construction drawings and standards of practice.     If you have any questions, or need additional information, please contact us.      Respectfully submitted,  COTTON, SHIRES AND ASSOCIATES, INC.        David T. Schrier  Principal Geotechnical Engineer   GE 2334            Approved and Authorized By                                     Date    DTS    Attachment: Schedule of Charges  COTTON, SHIRES AND ASSOCIATES, INC.  SCHEDULE OF CHARGES, LIMITATIONS AND TERMS FOR PROFESSIONAL SERVICES (Page 1 of 2)  January 2023  Personnel Charges Senior Principal Engineer/Geophysicist $ 340/hr Principal Geologist/Engineer $ 285/hr Supervising Geologist/Engineer $ 235/hr Senior Geologist/Engineer $ 210/hr Senior GIS Specialist $ 190/hr Senior Staff Geologist/Engineer $ 180/hr Staff Geologist/Engineer $ 160/hr Field/Laboratory Technician $ 135/hr* Clerical/Accounting $ 100/hr *Field Tasks that are subject to prevailing wage will be billed at $185/hr Equipment and Supply Charges Drone System $ 230/day Inclinometer System $ 230/day Piezometer Data Acquisition System $ 120/day Total Station Surveying Equipment $ 350/day GPS Surveying Equipment $ 450/day Nuclear Moisture/Unit Weight Gauge $ 170/day Rope Climbing Safety Equipment $ 290/day Multi-Channel Seismograph System and ReMi $ 345/day Nearmap Aerial Photographs $ 210/site Vehicle Mileage (or Current IRS Approved Rate) $ .625/mi Aircraft Mileage (or Current GSA Approved Rate) $1.52/nmi Photocopying (B&W-Color) $ .25-.60/copy Engineering (Large Format) Copier $ .60/ft2 Computer Assisted Color Plotting $ 15/sq. ft. Expert Witness Consultation Charges Expert witness testimony for court appearances and binding arbitrations shall be charged on a daily basis (minimum one-half day increments) at a rate of $4,640 per day. Deposition testimony shall be charged at a rate of $580 per hour (minimum one hour charge). Preparation time for depositions or court appearances shall be charged on a time-and-expense basis in accordance with the Personnel, Equipment, and Expense charges listed herein. Laboratory Testing and Geophysical Service Charges Laboratory testing and geophysical services shall be charged on a time-and- materials basis in accordance with the Personnel, Equipment, and Expense charges listed herein. Laboratory samples shall be stored for 60 days after the date of final report submittal unless special arrangements are made for longer storage. Expense Charges (Receipted Costs Plus 15%) • Travel expenses including air fare, lodging, vehicle rental, etc. (either actual receipted costs plus 15% for meals or a flat subsistence charge of $80 per diem for overnight stay shall be charged in addition to the lodging cost) • Excavation subcontractors and expendable field supplies • Reproduction of drawings • Film, film development, and photograph printing • Special fees, permits, insurance, etc. • Conference call telephone costs • Special mail service (air, electronic, courier, etc.) • Special equipment rental • Special consultant fees Limitations and Terms for Professional Services AGREEMENT – This Schedule of Charges, Limitations and Terms for Professional Services as an attachment to a signed Proposal or Client Contract constitutes an “Agreement” between COTTON, SHIRES AND ASSOCIATES, INC. (CSA) and the Client. Client has authorized commencement of the work under this Agreement by signing the “Approved by” section of the Proposal or Contract. The Agreement is hereby incorporated and made part of the Contract between the parties. In consideration of the mutual Agreement set forth herein and intending to be legally bound, the parties hereto agree as to the following: Invoicing and Payment – Client shall pay CSA compensation as outlined in the Proposal or at the rates determined in the above Schedule of Charges and according to the payment terms below. If the work extends into subsequent calendar years, the Schedule of Charges in effect for the year the work was conducted shall prevail unless otherwise agreed to in the contract for the work. Invoices may be prepared and submitted by CSA on a monthly basis or when the work is completed, at CSA’s option. Payment is due upon receipt and is past due thirty (30) days from date of invoice. A service charge of 1.5% per month, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts shall be paid by the Client. If payment of invoices is not current, CSA may suspend performing further work at no liability to CSA. Relationship between CSA and Client – CSA is retained by the Client to investigate and to consult with the Client regarding the Project, as defined in the Proposal. Client shall provide CSA in writing with all information relevant to the Project and shall advise CSA of any condition known to Client that may affect CSA’s performance under this Agreement. CSA’s services are for the benefit of the Client, but Client recognizes that the extent of those services is limited by the time-frame chosen and the funds expended by the Client for the investigation. CSA has no responsibility for the work product of any independent consultants required for the Client’s Project, nor for completeness, adequacy, or quality of said independent consultants’ work, or specialty work. Information Provided by Client – CSA and the Client shall discuss and agree upon the information needed for rendering of services hereunder. The Client agrees to provide to CSA all such information as agreed to be necessary. With respect to such information, the Client understands and agrees that CSA will rely solely upon the Client to ensure the accuracy and completeness thereof, as the Client recognizes that it is impossible for CSA to assure the accuracy, completeness and sufficiency of such information. Ownership of Documents and Proprietary Information – This proposal and all documents, including, but not limited to, drawings, specifications, computer disks, reports, calculations, and estimates, prepared by CSA in connection with this Agreement (“CSA Confidential Information”) are instruments of service and are intended for the sold use of the recipient hereof, and may not, except as otherwise described herein, be disclosed, distributed, or disseminated in any form without the prior written consent of CSA. The CSA Confidential Information is and shall remain the sole property of CSA. Client may distribute documents generated by CSA in connection with CSA’s services under this Agreement to third parties, provided that said third party agrees in writing to be bound by the confidentiality and ownership of documents provisions of this Agreement. The terms of this Section shall survive the termination of this Agreement. CSA SCHEDULE OF CHARGES, LIMITATIONS AND TERMS FOR PROFESSIONAL SERVICES (Page 2 of 2)  Public Liability -- COTTON, SHIRES AND ASSOCIATES, INC. is a California Corporation protected by Worker's Compensation Insurance (and/or Employer's Liability Insurance), and by Public Liability Insurance for bodily injury and property damage, and will furnish certificates thereof upon request. We assume the risk of damage to our own supplies and equipment. If your contract or purchase order places greater responsibilities upon us or requires further insurance coverage, we, if specifically directed by you, will procure additional insurance (if procurable) to protect us at your expense, but we shall not be responsible for property damage from any cause, including fire and explosion, beyond the amounts of coverage of our insurance. Standard of Care and Professional Liability -- In performing professional services, CSA shall use that degree of care and skill ordinarily exercised under similar circumstances by members of our profession at the time the services are performed. No other representation or warranty, expressed or implied, is made or intended in this Agreement, by our proposal for consulting services, by our furnishing oral opinion or written reports, or by our inspection or work. However, should we or any of our professional employees be found to have been negligent in the performance of professional services or to have made and breached any express or implied warranty, you agree that the maximum aggregate amount of your recovery against us and/or said professional employees shall be limited to $50,000 or the amount of the fee paid us for professional services as computed under the SCHEDULE OF CHARGES, whichever amount is greater. Moreover, client agrees to indemnify us against damages in excess of $50,000 or the amount of our fee, whichever amount is greater, arising from suits brought against us by third parties, in connection with our work performed on your project. Notices -- All notices in writing to be given hereunder by either party to the other party shall be served by letter or sent by email. Assignment -- Neither this agreement nor the benefits or obligations under this Agreement shall be sold, assigned or transferred by either party to any third parties including subsidiary or affiliated companies without the prior written approval of the other party, with such approval not to be unreasonably withheld by either. In the event the approval is given by either for assignment or transfer, such an approval shall not relieve either from any liability and/or responsibility under the Agreement. Termination/Cancellation -- Client and CSA will have the right to terminate this Agreement for reasonable cause by giving ten (10) days prior written notice. After termination, CSA will be reimbursed for services rendered and necessary expenses incurred to the termination date upon submission to Client of detailed supporting invoices. The obligations of paragraphs 3, 4, and 6 remain in effect after termination. Change in Scope of Work -- If, during the performance of the work under this Agreement, it is determined that the scope of work has expanded or changed such that additional expenditures are required, the client shall be notified and approval from the client shall be received prior to the performance of the additional services. Dispute Resolution -- CSA and Client recognize that disputes arising under this Agreement are best resolved at the working level by the parties directly involved. Both parties are encouraged to be imaginative in designing mechanism and procedures to resolve disputes at this level. Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party’s organization for resolution. Failing resolution of conflicts at the organizational level, CSA and Client agree that any remaining conflicts arising out of or relating to this Agreement shall be submitted to non-binding mediation unless CSA and Client mutually agree otherwise. If the dispute is not resolved through non-binding mediation, then the parties may take other appropriate action subject to the other terms of this Agreement. Neither party shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents or other events beyond the reasonable control of the other party, its employees or agents. Should litigation or arbitration occur between the parties relating to the provisions of this Agreement, all litigation or arbitration expenses, collection expenses, witness fees, court costs and attorneys’ fees reasonably incurred by the prevailing party shall be paid by the non-prevailing party. Governing Law -- The validity, performance, and construction of this Agreement, and the relationship between Client and CSA shall be governed and interpreted in accordance with the substantive laws of California, United States of America, without regard to its choice of law rules. This Agreement shall be construed as to its fair and not strictly for or against either party. Jobsite Safety – Neither the professional activities of CSA, nor the presence of CSA employees and CSA subconsultants at a construction site, shall relieve the contractor and any other entity of their obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all portions of the Work of construction in accordance with the contract documents and any health of safety precautions required by any regulatory agencies. CSA and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. The Client agrees that the general contractor and its various subcontractors are solely responsible for jobsite safety, and warrants that this intent shall be made evident where appropriate in the Client’s agreements with other contractors. If the Client is a Contractor or Subcontractor on the Project, the Client also agrees that the Client, CSA, and CSA’s consultants shall be indemnified and shall be made additional insureds under the client’s general liability insurance policy; in other cases, the Client agrees to arrange for this indemnification and additional insureds under the General Contractor’s general liability insurance policy. Field Exploration -- Unless otherwise agreed, the client shall furnish right-of-entry on land for planned field operations. The client shall also provide CSA with locations and depths of buried utilities and structures. CSA shall take responsible precautions to minimize damage to land from use of equipment, but our fee does not include cost of restoration of damage resulting from our exploration operations. CSA shall not be liable for damage or injury arising from damage to subterranean structures (pipes, tanks, telephone cables, etc.) which are not called to our attention and correctly shown on plans furnished to us. Miscellaneous – In the event of any litigation or proceeding involving CSA and Client, the prevailing party shall be entitled to recover its reasonable legal fees, expert fees, and normal employee rates and associated costs from the non-prevailing party. Failure by Client to object to any of the terms and conditions contained in this Agreement before the commencement of services by CSA will be deemed an acceptance of such terms and conditions. Notwithstanding anything to the contrary in this Agreement, CSA and Client agree that neither party shall be liable for any special, indirect, consequential, lost profits, or punitive damages. If any term, condition, or provision of this Agreement is found unenforceable by a court of law or equity, this Agreement shall be construed as though that term, condition, or provision did not exist, and its unenforceability shall have no effect whatsoever on the rest of this Agreement.