2006/02/14 City Council Resolution (6)RESOLUTION NO. 2006 -48
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK,
APPROVING AN AGREEMENT FOR SERVICES BETWEEN THE CITY OF ROHNERT
PARK AND MKM & ASSOCIATES FOR ASSISTANCE IN THE DEVELOPMENT OF A
SEISMIC RETROFIT ORDINANCE
WHEREAS, The California Seismic Safety Commission has recommended local building code
enforcement agencies identify potentially hazardous buildings and adopt mandatory mitigation programs
to reduce hazards in buildings by the year 2020;
WHEREAS, Section 19161 of the Health and Safety Code allows local governments to assess and
identify buildings in their jurisdiction that are seismically hazardous;
WHEREAS, Section 19162 gives local governments the authority to establish ordinances outlines
standards for reconstruction and strengthening of buildings identified in Section 19162;
WHEREAS, City Staff is currently developing the standards for a seismic retrofit ordinance;
WHEREAS, Staff requires qualitative and quantitative engineering analysis of prior and current building
codes to use as a basis for a seismic retrofit ordinance;
WHEREAS, Staff requires the services of a structural engineering consultant to provide an evaluation of
existing state law and building codes to assist in identifying buildings within the City of Rohnert Park that
are seismically hazardous;
WHEREAS, Staff has requested that MKM & Associates provide a proposal to perform this service
WHEREAS, the City has received and reviewed a proposal from MKM & Associates to provide
engineering analysis of building codes and state laws pertaining to seismic reconstruction;
WHEREAS, Staff has prepared an Agreement for Services between the City of Rohnert Park and MKM
& Associates regarding the as- needed work per the proposal;
WHEREAS, the City Council of the City of Rohnert Park has reviewed and considered the information
contained in the Staff Report and all relevant materials regarding the Agreement of Services between the
City of Rohnert Park and MKM & Associates.
NOW THEREFORE BE IT RESOLVED, that the City Council does hereby approve said Agreement
of Services and the City Manager is authorized to execute this agreement in substantially similar form,_to
the attached agreement for and on behalf of the City of Rohnert Park.
DULY AND REGULARLY ADOPTED on this 14th day of February,
ATTEST:
}
City Clerk
BREEZE: AYE FLORES: AYE
MACKENZIE: AYE VIDAK- MARTINEZ: AYE
SMITH: AYE
CITY OF ROIRT PARK
im
AYES: (5) NOES: (0)
ABSENT: (0) ABSTAIN: (0)
AGREEMENT FOR SERVICES
This Agreement is made and entered into this 14" day of February, 2006, by and between
the City of Rohnert Park, hereinafter referred to as the "City," and MKM &Associates,
hereinafter referred to as the "Consultant."
WHEREAS, the City requires assistance of an outside consultant in evaluating the
engineering criteria for development of a seismic retrofit ordinance; and
WHEREAS, the Consultant is qualified and experienced to provide such services.
NOW, THEREFORE, said City and said Consultant for the considerations hereinafter set
forth, mutually agree as follows:
1. SCOPE OF WORK. Consultant shall perform those services described as Tasks
ID the Scope of Work and Schedule of Performance attached as Exhibit "A" on an as- needed
basis and within the time frames stated therein.
2. COORDINATION. Consultant shall assign Bud Malmanis to personally
participate in said project and to coordinate the activities of the Consultant.
COMPENSATION.
A. City shall pay Consultant as compensation in full for such services and
expenses at the rates set forth in the Standard Hourly Rates and Charges attached to the respective
approved proposal, with the total sum not to exceed $10,000.00. The work shall be completed
on an as- needed basis as determined by the City. Progress payments will be tied to completion of
tasks so all payments are proportional to the work completed.
B. Consultant shall submit itemized monthly statements for work performed.
City shall make any payment due within thirty (30) days after approval of the invoice by City.
C. Payments due and payable to Consultant for current services are within the
current budget and within an available, unexhausted and unencumbered appropriation of the City.
In the event the City has not appropriated sufficient funds for payment of Consultant services
beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the
conclusion of the current fiscal year; payment for additional work is conditional upon future City
appropriation
4. TERM. The term of this Agreement shall be from the date. of its execution until
the completion of the work contemplated by this Agreement and its final acceptance by City
unless terminated earlier as provided herein.
5. NOTICES. All notices, bills, and payments shall be made in writing and may be
given by personal delivery or by mail. Notices, bills and payments sent by mail should be
addressed as follows:
TO CITY: COMMUNITY DEVELOPMENT DEPARTMENT
CITY OF ROHNERT PARK
6750 COMMERCE BOULEVARD
ROHNERT PARK, CA 94928
TO C.ONSI_JLTANT: MKM &.ASSOCIATES
441 COLLEGE AVENUE
SANTA ROSA, CA 95401
ATTENTION: BUD MALMANIS
and when so addressed, shall be deemed given upon deposit in the United States mail,
postage prepaid. In all other instances, notices, bills and payments shall be deemed given at the
time of actual delivery. Changes may be made in the names and addresses of the person to whom
notices, bills and payments are to be given by giving notice pursuant to this Paragraph.
6. AMENDMENT OF SCOPE OF WORK. City shall have the right to amend the
Scope of Work of any approved proposal within the Agreement by written notification to the
Consultant. In such event, the compensation and time of performance shall be subject to
renegotiation upon written demand of either party to the Agreement. Failure of the Consultant to
secure City's written authorization for extra or changed work shall constitute a waiver of any and
all right to adjustment in the contract price or time due, whether by way of compensation,
restitution, quantum mermt, etc. for work done without the appropriate City authorization.
7. CITY'S RIGHT TO TERMINATE /SUSPEND_ CONTRACT. At any time and
for any or no reason, City shall have the right to terminate this Agreement, take possession of the
Consultant's work, e.g., studies, preliminary drawings, computations, specifications, etc., insofar
as they are complete and acceptable to the City, and pay the Consultant such equitable proportion
of the total remuneration as the work satisfactorily done by the Consultant at the time of such
discontinuance bears to the whole of the work required to be done by the Consultant under the
terms of this Agreement.
8. CORRECTION OF WORK. The performance of services or acceptance of
information furnished by Consultant shall not relieve the Consultant from obligation to correct
any subsequently discovered work, which fails to conform to competent professional standards,
and all such work shall be remedied by the Consultant on demand without cost to the City.
9. DELAYS AND EXTENSIONS. The Consultant will be granted time extensions
for delays beyond the Consultant's control. Time extensions will be equal to the length of the
delay or as otherwise agreed upon between the Consultant and the City. In such event,
compensation as set forth in the Scope of Work shall be subject to renegotiation upon written
demand of either party to the Agreement.
10. RECORDS OF PERFORMANCE. Consultant shall maintain adequate records of
contract performance costs, expenses, etc., and make these records available for inspection,
audit, and copying by the City during the agreement period and for a period of three (3) years
from the date of final payment.
11. SUBCONTRACTING. None of the services covered by this contract shall be
subcontracted without the prior written consent of the City. In accordance with Government
Code Section 7550, Consultant agrees to state in a separate section of any filed report the
numbers and dollar amounts of all contracts and subcontracts relating to preparation of the report.
12. ASSIGNMENT. The Agreement shall not be assigned by the Consultant in whole
or in part, without the written consent of the City.
13. INDEMNIFICATION. To the full extent permitted by law, Consultant shall
indemnify, hold harmless, release and defend City, its officers, employees and agents from and
against any and all actions, claims, demands, damages, disability, losses, expenses including
attorney's fees and other defense costs and liabilities of any nature that may be asserted by any
person or entity including Consultant, arising out of Consultant's negligent performance of
services hereunder, including the activities of other persons employed or utilized by Consultant in
the performance of this Agreement (including design defects and regardless of City's approval,
use or acceptance of the work or work product hereunder) excepting liabilities due to the
negligence or willful misconduct of City. This indemnification obligation is not limited in any
way by any limitation on the amount or type of damages or compensation payable by or for
Consultant under Worker's Compensation, disability or other employee benefit acts or the terms,
applicability or limitations of any insurance held or provided by Consultant and shall continue to
bind the parties after termination/completion of this Agreement.
14. INSURANCE. Without limiting Consultant's indemnification provided herein,
Consultant shall take out and maintain, throughout the period of this Agreement, the following
policies of insurance placed with insurers with a current A.M. Bests rating of no less than A:VII
X
or its equivalent against injury /death to persons or damage to property which may arise from or
in connection with the activities hereunder of Consultant, its agents, employees or subcontractors:
A. Comprehensive or Commercial General Liability Insurance at least as
broad as Insurance Services Office Commercial General Liability coverage (occurrence form CG
0001), in an amount of $1,000,000.00 per occurrence. If work involves explosive, underground
or collapse risks, XCU must be included. If a general aggregate limit is used, either the general
aggregate limit shall apply separately to this project or the general aggregate shall be twice the
required occurrence limit. Said policy shall contain, or be endorsed with, the following
provisions:
(1) The City, its officers, employees and agents, are covered as additional
insured, to the extent of Consultant's negligence, for liability arising out of the operations
performed by or on behalf of Consultant. The coverage shall contain no special limitations on the
scope of protection afforded to the City, its officers, agents and employees.
(2) The policy shall not be canceled or materially reduced in coverage without
thirty (30) days prior written notice (10 days for non - payment of premium) to City by certified
mail.
(3) The inclusion of more than one insured shall not operate to impair the rights
of one insured against another insured, and the coverage afforded shall apply as though separate
policies had been issued to each insured, but the inclusion of more than one insured shall not
operate to increase the limits of the insurer's liability.
(4) For claims related to this project, the Consultant's insurance is primary
coverage to the City, and any insurance or self - insurance programs maintained by the City is
excess to Consultant's insurance and will not be called upon to contribute with it.
(5) Any failure to comply with reporting or other provisions of the parties,
including breach of warranties, shall not affect coverage provided to City, its officers, employees
and agents.
B. Automobile liability insurance with coverage at least as broad as ISO Form
numbers CA 0001 06 92, Code 1 (any auto), for vehicles used in the performance of this
Agreement with minimum coverage of not less than $1,000,000 per accident combined single
limit (CSL). Such policy shall contain or be endorsed with the provision that coverage shall not
be canceled or materially reduced in coverage without thirty (30) days prior written notice (10
days for non- payment of premium) to City by certified mail.
C. Worker's Compensation insurance meeting statutory limits of Labor Code
which policy shall contain or be endorsed to contain a waiver of subrogation against City, its
officers, agents, and employees and provide for thirty (30) days prior written notice to City in the
event of cancellation. If Consultant has no employees, Consultant may sign and file the following
certification in lieu of insurance:
"I am aware of the provisions of California Labor Code Section
3700 which requires every employer to be insured against liability
for workers' compensation or to undertake self - insurance in
accordance with the provisions of that code, and I will comply with
the provisions of that code before commencing with and during the
performance of the work of this contract. "
D. Professional liability insurance /errors and omission coverage in an amount no
less than $1,000,000.00 combined single limit (CSL). If insurance is written on a claim -made
basis, Consultant agrees to maintain such insurance in effect for at least three (3) years following
completion of performance under this Agreement.
E. Consultant shall furnish City with certificates and original endorsements
affecting the required coverage upon execution of this Agreement by City. The endorsements
shall be on forms provided by City or as approved by City Attorney. Any deductible or self -
insured retention over $100,000.00 shall be disclosed to and approved by City. If Consultant
does not keep all required insurance policies in full force and effect, City may, in addition to
other remedies under this Agreement, take out the necessary insurance, and Consultant agrees to
pay the cost of said insurance.
15. STANDARD OF CARE. City relies upon the professional ability of Consultant
as a material inducement to entering into this Agreement. Consultant agrees to use reasonable
care and diligence in rendering services under this Agreement. Consultant agrees that the
acceptance of his work by City shall not operate as a waiver or release of said obligation of
Consultant. The absence, omission, or failure to include in this Agreement, items which are
normally considered to be a part of generally accepted professional procedure or which involve
professional judgment shall not be used as a basis for submission of inadequate work or
incomplete performance.
16. COVENANT AGAINST CONTINGENT FEES. The Consultant warrants that he
has not employed or retained any company or person, other than a bona fide employee working
for the Consultant, to solicit or secure this Agreement, and that he has not paid or agreed to pay
any company or person, other than a bona fide employee, any fee, commission, percentage,
brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or
making this Agreement. For breach or violation of this warranty, the City shall have the right to
annul this Agreement without liability or, in its discretion to deduct from the Agreement price or
consideration, or otherwise recover, the full amount of such fee, commission, percentage,
brokerage fee, gift, or contingent fee.
17. CONFLICT OF INTEREST. Consultant covenants that it presently has no
interest and shall not acquire any interest, direct or indirect, which would conflict in any manner
or degree with the performance of its services hereunder. Consultant further covenants that in the
performance of this Agreement, no person having any such interest shall be employed.
18. STATEMENT OF ECONOMIC INTEREST. If City determines Consultant
comes within the definition of Consultant under the Political Reform Act (Government Code
§87100), Consultant shall complete and file and shall require any other person doing work under
this Agreement to complete and file a "Statement of Economic Interest" with the Clerk of the
City of Rohnert Park disclosing Consultant and /or such other person's financial interests.
19. MERGER. This Agreement shall constitute the entire Agreement between the
parties and shall supersede any previous agreements, whether verbal or written, concerning the
same subject matter. No modification of this Agreement shall be effective unless and until
evidence by a writing is signed by both parties.
20. DEFAULT. If Consultant should fail to perform any of his obligations hereunder,
within the time and in the manner herein provided or otherwise violate any of the terms of this
Agreement, City may terminate this Agreement by giving Consultant written notice of such
termination, stating the reason for such termination. In such event, Consultant shall be entitled to
receive as full payment for all services satisfactorily rendered and expenses incurred hereunder,
an amount which bears the same ratio to the total fees specified in the agreement as the services
satisfactorily rendered hereunder by Consultant bear to the total services otherwise required to be
performed for such total fee; provided, however, that the City shall deduct from such amount the
amount of damage, if any, sustained by City by virtue of the breach of the Agreement by
Consultant.
21. NO WAIVER OF BREACH; TIME. The waiver by City of any breach of any
term or promise contained in this Agreement shall not be deemed to be a waiver of such term or
provision or any subsequent breach of the same or any other term or promise contained in this
Agreement. Time is of the essence in carrying out the duties hereunder.
22. THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in third parties.
4
23. ATTORNEY FEES APPLICABLE LAW AND _FORUM. In the event either
party brings an action or proceeding for damages arising out of the other's performance under
this Agreement or to establish the right or remedy of either party, the prevailing party shall be
entitled to recover reasonable attorney fees and costs as part of such action or proceeding,
whether or not such action or proceeding is prosecuted to judgment. This Agreement shall be
construed and interpreted according to California law, and any action to enforce the terms of this
Agreement or for the breach thereof shall be brought and tried in the County of Sonoma.
24. INDEPENDENT CONTRACTOR. The parties intend that Consultant, in
performing the services specified herein, shall act as an independent contractor and shall have
control of the work and the manner in which it is performed. Consultant is not to be considered
an agent or employee of the City and is not entitled to participate in any pension plan, insurance,
bonus or similar benefits City provides its employees. In the event City exercises its right to
terminate this Agreement, Consultant expressly agrees that he /she shall have neither recourse nor
right of appeal under rules, regulations, ordinances or laws applicable to employees.
25. TAXES. Consultant agrees to file tax returns and pay all applicable taxes on
amounts paid pursuant to this Agreement and shall be solely liable and responsible to pay such
taxes and other obligations, including, but not limited to, state and federal income and FICA
taxes. Consultant agrees to indernnify and hold the City harmless from any liability which it may
incur to the United States or to the State of California as a consequence of Consultant's failure to
pay, when due, all such taxes and obligations.
26. EMPLOYMENT PRACTICES. Consultant shall not discriminate in its
performance under the Agreement either directly or indirectly on the grounds of race, color,
religion, sex, age, national origin, or other prohibited grounds in its employment practices, and
shall take affirmative steps to ensure that applicants are employed and employees are treated
during employment without regard to race, color, religion, sex, age, national origin, or other
prohibited grounds.
27. COMPLIANCE WITH LAW. Consultant shall comply with all applicable
federal, state and local laws, rules and regulations affecting the Consultant and his /her work
hereunder. Consultant represents and warrants to City that Consultant has all licenses, permits,
qualifications and approvals of whatsoever nature which are legally required for Consultant to
practice Consultant's profession and to do the work hereunder. Consultant represents and
warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times
during the term of this Agreement any licenses, permits, and approvals which are legally required
for Consultant to practice his /her profession and do the work contemplated by this Agreement.
28. TITLE TO DOCUMENTS. Title to all plans, specifications, maps, estimates,
reports, manuscripts, drawings, descriptions and other final work products compiled by the
Consultant under the Agreement shall be vested in the City, none of which shall be used in any
manner whatsoever, by any person, firm, corporation, or agency without the expressed written
consent of the City. Basic survey notes and sketches, charts, computations, and other data
prepared or obtained under the Agreement shall be made available, upon request, to the City
without restriction or limitations on their use. Consultant may retain copies of the above -
described information but agrees not to disclose or discuss any information gathered, discussed or
generated in any way through this Agreement without the written permission of City during the
term of this Agreement or until ninety (90) days after receipt of final payment from City.
29. INTERPRETATION. Notwithstanding the fact that one or more provisions of
this Agreement may have been drafted by one of the parties to this Agreement, such provisions
shall be interpreted as though they were a product of a joint drafting effort and no provisions shall
be interpreted against a party on the ground that said party was solely or primarily responsible for
drafting the language to be interpreted.
661
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written. v
CITY OF ROHNERT PARK:
By:
Stephen R. Donley, City Manager DATE
Per Reso. No. 2006 -48 adopted by the Rohnert Park
City Council at its meeting of February 14, 2006.
i
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
CITY AT R RNEY
CONSULTANT:
CERTIFICATE OF CONSULTANT
I HEREBY CERTIFY that I am the and a duly
authorized representative of the firm of
whose address is and that
neither I nor the above firm I here represent has:
a) Employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide
employee working solely for me or the above consultant) to solicit to
secure this Agreement.
b) Agreed, as an express or implied condition for obtaining
this contract, to employ or retain the services of any firm or
person in connection with carrying out the Agreement; or
C) Paid, or agreed to pay, to any firm, organization or person (other than a
bona fide employee working solely for me or the above consultant) any
fee, contribution, donation, or consideration of any kind for, or in
connection with, procuring or carrying out the Agreement;
Except as here expressly stated (if any);
I acknowledge that this certificate is subject to applicable State and Federal laws, both
criminal and civil.
Date Signature
agr \Consult.
7
Exhibit "A"
Associates
January 12, 2006
Peter Bruck
Deputy Chief Building Official
City of Rohnert Park
6750 Commerce Blvd.
94928
Larry Miyano - Jeff Kennedy - Bud Malmanis -
JAN 1 3 2006
CITY OF ROHNERT PA
MKM File 11 052135
This is in response to your request for a Professional Engineering Services Proposal to
provide the necessary research and recommendations to assist the City of Rohnert Park in
the development of their Seismic Safety Ordinance. Rohnert Park is situated
approximately 5 to 7 kilometers from the Rogers Creek Fault which has been identified
by the 2001 California Building Code as a "Seismic Source Type A." Source Type A
faults are those capable of producing an earthquake of magnitude 7.0 or greater and have
a slip rate of 5mm per year or greater.The most current state legislation regarding seismic
safety is AB 304 which became law on January 1, 2006, and amended Sections 19160
through 19166 of the Health and Safety Code_ These code sections relate to building
reconstruction standards and are designed to reduce earthquake hazards in existing
buildings.
The code mentioned above provides the basis for the development of the City of Rohnert
Park Seismic Safety Ordinance. Section 19161 of the Health and Safety Code allows
local governments to assess and identify buildings in their jurisdiction that are seismically
hazardous. Section 19162 gives local governments the authority to establish ordinances
outlining standards for reconstruction and strengthening of buildings identified in Section
19161.
AB 304 amended the Health and Safety code by declaring that California will continue to
experience moderate to severe earthquakes in the future and emphasized the need for the
reconstruction of hazardous buildings as a means to improve life safety during
earthquakes. It states that the Seismic Safety Commission has recommended local
building code enforcement agencies identify potentially hazardous buildings and adopt
mandatory mitigation programs to reduce hazards in buildings by the year 2020. AB 304
expressly identifies two types of structures as being potentially hazardous.
441 College Avenue - Santa Rosa, CA 95401 - (707) 578 -8185 - Fax: (707) 578 -7153 - Email: into@mkmassociates.com
Seismic Upgrade Code Consultation
January 12, 2006
Page 2
They are multiunit residential buildings (three or more units) constructed before January
1, 1978 containing "soft stories" (i.e. where lower stories of buildings are not adequately
braced to resist earthquake forces such as in open -front wall lines), and unreinforced
masonry buildings that lack adequate roof to wall ties or contain unbraced parapets or
ornamentation that may fall during ground shaking.
AB 304 recognizes the International Existing Building Code (IEBC) as the model code
for the retrofit of existing buildings but does not limit local governments to adopt this
code should other model codes be developed.
MKM proposes to provide the services to assist with the ordinance as described above as
a Time and Material basis with a not to exceed amount of $10,000.00.
Our services will include the study of current and previous codes as necessary to develop
purposeful recommendations regarding the mitigation of seismic hazards within your
jurisdiction. Furthermore, we will propose a systematic plan for the identification of
potentially hazardous buildings and the implementation of your ordinance.
If you have any questions regarding our proposal or services, please do not hesitate to
call.
Sincerely,
MKM & ASSOCIATES
A California Corporation
1 c ,
Bud Malmanis
BM/sh
Cs011206BM
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MKM Current Billing Rates*
(Effective April 15, 2005)
Principal Engineer
Engineer 3
Engineer 2
Engineer 1
Sr. Constr. Admin. Tech.
Structural Designer 2
Structural Designer 1
Structural Technician 3
Structural Technician 2
Structural Technician I
Clerical
Mileage
Reimbursable Expenses
*Depositions are two times the standard hourly rate.
10
$140 /hour
$120/hour
$120 /hour
$110/hour
$110 /hour
$ 80 /hour
$ 50/hour
$ 80 /hour
$ 75 /hour
$ 60/hour
$ 40 /hour
40.5 cents /mile
Cost plus 10%