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HomeMy WebLinkAboutGONG ENTERPRISES, INC. (2)INSURANCE NOT ON FILE N-2020-154 WORK MAY NOT PROCEED CLERK OF COUNCIL N DATE: /zi� a G MENT TO PROVIDE ON -CALL DEVELOPMENT PLAN CHECK SERVICES C1Lormr 4e kec� i_p-, THIS AGREEMENT is made and entered into this 1st day of September, 2020 by and between Gong Enterprises, Inc., ("Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing tinder the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a Consultant having special skill and knowledge in the field of on -call Development Plan Check Services for the Public Works Agency. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform the tasks and obligations including all labor, materials, tools, equipment and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services — Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit A. The total sum to be expended under the term of this Agreement, including any extension period, shall not exceed $50,000. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on August 31, 2021, unless terminated earlier in accordance with Section 17, below. The tern of this Agreement may be extended for one I -year period upon a writing executed by the City Manager and City Attorney. Page 1 of 8 4. PREVAILING WAGES Consultant's aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws', which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for city to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents &Data")_ Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection Page 2 of 8 against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for workers' compensation or to undertake self-insurance. Prior to commencing the Performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect, by Consultant, without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to famish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. Page 3 of 8 8. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, Consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury , damages, just compensation, restitution, judicial or equitable relief due to personal orpropertyrights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and identifiable. invoices shall be clearly id Consultant shall allow a representative of the City to examine, audit, and make transcripts id copies e. such records and any other documents created puof rsuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or Page 4 of 8 fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these timeframes, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreement embodied herein. s, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Consultants retained by City. 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. hi such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. Page 6 of 8 N-2020-154 b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIDIINATION Consultant shall not discriminate because of race, color, creed, relation, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 19. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 20. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, Permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder an and all d required by the laws and regulations of the United States, the State of California, the City of Santa Ana other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 21. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTE 54 airy Gomez Clerk of the Council CITY OF SANTA ANA Kristine Ridge City Manager Page 7 of 8 APPROVED AS TO FORM SONIA R. CARVALHo City Attorney By: d!!�, ?K,. John M.Funk Acting Senior Assistant City Attorney RECOMMENDED FOR APPROVAL Nabil Saba, P.E. Executive Director Public Works Agency CONSULTANT IrWWt� Name: Kenneth Cho Gong Title: President Page 8 of 8 ONG ENTERPRISES, INC, CIVIL. ENiGINEERIN&CONSUL1 AN]S TO GOVONNIFNrAI U.i0NC16S July 30, 2020 EXHIBIT A Mr. Brian Ige, Assistant Civil Engineer City of Santa Ana Public Works Agency — Water Resources Division City Corporation Yard 220 S. Daisy Avenue, M-85 Santa Ana, CA 92703 Re: Proposal for Professional Plan Check Services Dear Brian: Gong Enterprises, Inc (GEI) is pleased to provide this proposal to offer professional plan checking services for City of Santa Ana Public Works Agency — Water Resources Division. Based on our discussions and email correspondence, plan check would include the review of main line water improvements, water lateral services, sewer main line improvements, and sewer laterals as they relate to various types of development/ redevelopment projects such as single family, multi -family, commercial, industrial, and subdivisions (parcel or tract maps). Related Projects, GEI has reviewed numerous projects that involve water and sewer improvements for the City of San Clemente and San Juan Capistrano for over 31 years on a consistent basis. The projects include domestic and non — domestic water lines, fire lines, sewer lines, and associated appurtenances such as backflow devices, pressure regulators, Fire Department connections, fire hydrants, etc. Projects include Single Family homes, duplexes, commercial buildings, industrial buildings, condominiums, and tract homes. This includes new and remodel projects. Synopsis of Plan Checking and Plan check aooroach 1. Mr. Ken Gong will personally be involved in the plan check process and will review and/or oversee every technical map, report, or improvement plan. Since GEI provides civil engineering services solely to municipalities, there are no professional conflicts of interest with the private sector. 2. GEI plan checking services include both Quality Assurance (QA) and Quality Control (QC). QA is to ensure that the plans have been evaluated in a technical standpoint; to be in substantial compliance with CITY codes, standards, policies, and criteria. QC is to ensure the improvement plans are cross-referenced and coordinated with other plans or plan sheets to ensure consistency and a well thought-out project. 1755 Center Avenue, Suite 1100 1 Huntm,,ton 30ach. CA 92647 Ph: (714) 372-49S9r Fax (-14) 372-4963 Email: GONGENiERPRISES�a�Y,gH00.CONi plan Check Consultin� 3. GEI's philosophy of the role of consultant is to support, provide advice, and to be an "extension" of In-house personnel. 4. GEI is easily accessible to answer questions and communicate professionally with CITY staff. Emails and Voice mails are typically returned within hours on the same day upon receipt of the message. 5. Ken Gong is also a licensed General Contractor — B classification. The combination of civil engineering and construction knowledge and over 40 years of experience provides valuable insight to real world practicality and engineering principles. Standards and Criteria: All plans will be reviewed for substantial compliance with CITY format, codes, criteria, standards, and typical general engineering practices. A kick off meeting will be scheduled with CITY staff to familiarize GEI with expectations by CITY and to discuss standards, format, and criteria that projects will require. Sample Procedures - The following represents a sample of plan check procedures (subject to change): 1. Client contacts GEI that a project is ready for pickup. A designated location is provided @ CITY for courier service to pickup. 2. Client shall provide GEI (2) sets of plans and 1 copy of all research information such as as builts, CITY's atlas maps, and other information that will be required to adequately plan check. 3. GEI will have the plans picked up and project will be logged into GEI's schedule. 4. Goal is to review and complete the plan check review within 2 weeks or agreed upon schedule upon receipt of the plans. 5. GEI will review the plans to ensure compliance with CITY requirements. 6. GEI will write a plan check letter. 7. GEI will return the completed review along with the plan check letter to CITY. Classification: Hrly Rate: Principal/Professional Engineer Clerical/Administration $185.00 Blueprints, courier service, misc $ Cosstt plus 10% GEI shall invoice on a time and materials basis in accordance with the hourly rate schedule presented hereon on a monthly basis. All incidental/overhead costs that include travel, printing, telephone, photographs, and postage are included within the hourly rate. M The hourly rates include all associated administrative, tracking, and coordination efforts involved for the plan check of that particular plan. certificate of insurance: GEI maintains general Liability, Worker's compensation, and Professional Liability (errors and omission) Insurance. A copy of the various certificates of insurance will be provided to CITY as part of the agreement. Thank you for your consideration. We are looking forward to providing the very best plan checking service for you and the City of Santa Ana. If any questions arise, do not hesitate to call. Thank you. Sincerely,( Ken Gong, PE SAProposalbrian'1(7-30-20) REsuMe Oa' PIRINCIPAL OWNER KENNETH CHO GONG, PE Presiclent/owner EDUCATION: REGISTRATION., EMPLOYMENT HISTORY: 6.8. Engineering University of California, Lavine (1980) Professional Engineer, 1983, GA (*38494) General Contractor, B_RiC 1985 to present: 1985-lea9: 1982.-1985, 18a04982- ftft9E.. 'long enterpdses, bac, President/Owner Gong Enterprises, Inc. Civil Engineer, E�Re9ulatlonlSubdivislon Streefs/Erainago sections Civil Engineer, Orange County Flood Control District Assistant Civil Engineer, Lab i~'"JCon-st"wateriais a. Design of master plan of dranags a e b. Design of Glen Ranh g facility J01PO3 Foothill ranch Community c• preTus irninary design for Storm drain irnp ova e Ranch'thill along Tustin. d• t)esign of Civic Center rehabilitation pro}Pets, Cityof Amaganset btray, City o€ e• Plan checked numerous street and storm drain laps within the devera the MCAS-Tustin , Santa Ana .parks. f. Plan checked nu r oval base, City of Tustin. p pment of Joianson•Fr nk, lrnerous plans for the City of twine as a sub consultant to 9• Plan checked Runof? management plan for Serrano Hsights, City h• Plan checked numarcus improvement plans for the Clty Of orange. i. Plan check services for CityY of Orange k Plan check services for Cit of an Juan Capist ono k• Plan check services for city ngotng (1989 —present). 1• Plan check services far City of Brsa no Valle ongoing (1991 _present). m. Plan check services for city ongoi g (2017ing (2003 t0 present). tY of Mission Viejo nn oin present) 1r1V1AWG d77 N1e g 9 (2014—present) .sDlvls O Reviewed numerous street, grading, and drainage plans within: e• Dove Canyon Planned b. Rancho Santa Margarita c. Allso vlejp punned rite Planned immunity, d. City of Mission Planned Community. ity. e' F of i�agUna Niguel {formed uninc rported territory)• f' oothill Ranch Mann Y c nlncorporated tordtory, g• Baker ranch. Carnmundty (now park of Cake Forest), City of Laguna Hilts (formerly unincorporated ten'ltory. i. Coto � Cam. L wily of El Torn (formerly unincorporated territory). CounWPlan checked numerous drainage projects, regional in nature. Prepared ZVeloper agreements far. pared a, 60rr 0 Channel (box culvert, va aj wall channel) b. Bi Mrad+�n�i Channel {box cuiert/traPezoidat concrete lined) c' Bea Canyon (box culvert, vertical wetl channel) d• + aaden Vent' Channel (box culvert) e. San bt p Creek Channel {Soli cennent traPeaoicia! cht�nnei f Msrshburn Channel {box culvert, vertical wall channel) $• A.11so v1440 Channel (natural, ) { oral, concrete -lined) Total lineal footage reviewed: Approxirnately20 miles. OR AINglic COUNTY wm-qg Designsdlravlewad-Y thy$ t4vu fig. �lS R C a. San Jaen Creek b. Oso Creek. C• Carbon Creek Channel. d. Allso Creek Channel. Responsible for all aspects of agreement preparation hydrologic, design such as; Budget analysis, right of waya and review, surveys, structures, Plan pre hydraulic ana(ysls, sot; report acgrir5�r nian ecqulaftion, and pre construct!on atte darn don' contract administration permit