David J. Powers & Associates, Inc. 1 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24
SERVICE PROVIDER AGREEMENT
This SERVICE PROVIDER AGREEMENT (“Agreement”) is entered into this ____ day of _________ 20___ (“Effective Date”), by and between the CITY OF ALAMEDA, a municipal corporation (“the City”), and David J. Powers & Associates, Inc., a California Corporation, whose address is 1736 Franklin, Suite 400, Oakland CA 94612 (“Provider”), in reference to the following facts and circumstances:
RECITALS
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. The City is in need of the following services: Environment Review Services for the Alameda Aquatic Center and for future on-call services. City staff issued an RFQ on 12/19/19 and after a submittal period of forty-three (43) days received twenty-one (21) of timely submitted proposals for on-call environmental review services. For the Alameda Aquatic Center project, City staff sought proposals from three service providers. City staff reached out to the service providers on the list, interviewed qualified firms and selected the service provider that best meets the City’s needs.
C. Provider is specially trained, experienced and competent to perform the special services which will be required by this Agreement.
D. Whereas, the City Council authorized the City Manager to execute this agreement on December 3, 2024.
E. The City and Provider desire to enter into an agreement for environment review services and on-call services, upon the terms and conditions herein.
AGREEMENT
NOW, THEREFORE, in consideration of the forgoing, which are incorporated herein by reference, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Provider agree as follows:
1. TERM:
The term of this Agreement shall retroactively commence on the 1 st day of October 2024 and shall terminate on the 30 day of June 2027, unless terminated earlier as set forth herein.
The parties may agree to extend the term of this Agreement on a year-by-year basis, for a total term not to exceed five (5) years. Any extension shall be documented in a signed amendment.
In the event that the parties agree to extend the Agreement, all provisions of the Agreement shall remain unchanged.
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 2 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24
2. SERVICES TO BE PERFORMED:
Provider agrees to do all necessary work at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, and to do all necessary work included in Exhibit A as requested. Provider acknowledges that the work plan included in Exhibit A is tentative and does not commit the City to request Provider to perform all tasks included therein.
3. COMPENSATION TO PROVIDER:
a. By the 7 th day of each month, Provider shall submit to the City an invoice for the total amount of work done the previous month. Pricing and accounting of charges are to be according to the fee schedule as set forth in Exhibit B and incorporated herein by this reference.
Extra work must be approved in writing by the City Manager or their designee prior to performance and shall be paid on a Time and Material basis as set forth in Exhibit B. b. Compensation for this contract shall not exceed $200,000 for the term ending June 30, 2027, the breakdown is as follows:
1. Aquatic Swim Center $150,000.
2. On-call Services $50,000.
c. Compensation shall be up to $25,000 for each additional extension.
4. TIME IS OF THE ESSENCE:
Provider and the City agree that time is of the essence regarding the performance of this Agreement.
5. STANDARD OF CARE:
Provider shall perform all services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Provider represents that it is skilled in the professional calling necessary to perform all services contracted for in this Agreement. Provider further represents that all of its employees and subcontractors shall have sufficient skill and experience to perform the duties assigned to them pursuant to and in furtherance this Agreement.
Provider further represents that it (and its employees and subcontractors) have all licenses, permits, qualifications, and approvals of whatever nature that are legally required to perform the services (including a City Business License, as needed); and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Provider shall perform (at its own cost and expense and without reimbursement from the City) any services necessary to correct errors or omissions which are caused by Provider’s failure to comply with the standard of care provided for herein. Any employee of the Provider or its sub-providers who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of any services under this Agreement, or a threat to the safety of persons or property (or any employee who fails or refuses to perform the services in a manner acceptable to the City) shall be promptly removed by the Provider and shall not be re-employed to perform any further services under this Agreement.
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 3 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24
6. INDEPENDENT PARTIES:
Provider hereby declares that Provider is engaged as an independent business and Provider agrees to perform the services as an independent contractor. The manner and means of conducting the services and tasks are under the control of Provider except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Provider’s services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers’ compensation plans, vacation and sick leave, are available from the City to Provider, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any compensation due to Provider. Payments of the above items, if required, are the responsibility of Provider. Any personnel performing the services under this Agreement on behalf of Provider shall also not be employees of City and shall at all times be under Provider’s exclusive direction and control.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Provider assumes any and all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Provider shall indemnify, defend, and hold the City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Provider.
8. NON-DISCRIMINATION:
Consistent with the City’s policy and state and federal law that harassment and discrimination are unacceptable conduct, Provider and its employees, contractors, and agents shall not harass or discriminate against any job applicant, City employee, or any other person on the basis of any kind of any statutorily (federal, state or local) protected class, including but not limited to: race, religious creed, color, national origin, ancestry, disability (both mental and physical) including HIV and AIDS, medical condition (e.g. cancer), genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, pregnancy, political affiliation, military and veteran status or legitimate union activities. Such non-discrimination shall include but not be limited to all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. Provider agrees that any violation of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
a. To the fullest extent permitted by law, Provider shall indemnify, defend (with counsel acceptable to the City) and hold harmless the City, its City Council, boards, commissions, officials, employees, agents and volunteers (“Indemnitees”) from and against any and all loss, damages, liability, obligations, claims, suits, judgments, costs and expenses whatsoever, including reasonable attorney’s fees and costs of litigation (“Claims”), arising from or in any manner connected to Provider’s performance of its obligations under this Agreement or out of the operations conducted by Provider even if the City is found to have been negligent. If the Claims filed against Indemnitees allege negligence, recklessness or willful misconduct on the part of Provider, Provider shall have no right of reimbursement against Indemnitees for the costs of Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 4 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 defense even if negligence, recklessness or willful misconduct is not found on the part of Provider.
Provider shall not have any obligations to indemnify Indemnitees if the loss or damage is found to have resulted solely from the negligence or the willful misconduct of the City. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement. b. As to Claims for professional liability only, Provider’s obligation to defend Indemnitees (as set forth above) is limited as provided in California Civil Code Section 2782.8. c. Provider’s obligation to indemnify, defend and hold harmless Indemnities shall expressly survive the expiration or early termination of this Agreement.
10. INSURANCE:
a. On or before the commencement of the terms of this Agreement, Provider shall furnish the City’s Risk Manager with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with Sections
10.b. (1) through (5). The Certificate Holder should be The City of Alameda, 2263 Santa Clara, Ave., Alameda, CA 94501. Such certificates, which do not limit Provider’s indemnification, shall also contain substantially the following statement:
“Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days’ advance written notice to the City of Alameda. Attention: Risk Manager.” Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company licensed to offer insurance business in the State of California with a current A.M. Best’s rating of no less than A:VII or Standard & Poor’s Rating (if rated) of at least BBB unless otherwise acceptable to the City. Provider shall deliver updated insurance certificates to the City at the address described in Section 17.f. prior to the expiration of the existing insurance certificate for the duration of the term of Agreement. Endorsements naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers as additional insured shall be submitted with the insurance certificates.
_____________
Provider Initials
b. COVERAGE REQUIREMENTS:
Provider shall maintain insurance coverage and limits at least as broad as:
(1) Workers’ Compensation:
Statutory coverage as required by the State of California, as well as a Waiver of Subrogation (Rights of Recovery) endorsement. (2) Liability:
Commercial general liability coverage in the following minimum limits:
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 5 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate - all other
Property Damage: $1,000,000 each occurrence
$2,000,000 aggregate
If submitted, combined single limit policy with per occurrence limits in the amounts of $2,000,000 and aggregate limits in the amounts of $4,000,000 will be considered equivalent to the required minimum limits shown above. Provider shall also submit declarations and policy endorsements pages. Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required. The Additional Insured Endorsement shall include primary and non-contributory coverage at least as broad as the CG 2010.
(3) Automotive:
Comprehensive automobile liability coverage (any auto) in the following minimum limits:
Bodily injury: $1,000,000 each occurrence
Property Damage: $1,000,000 each occurrence
or
Combined Single Limit: $2,000,000 each occurrence
Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required. (4) Professional Liability:
Professional liability insurance which includes coverage appropriate for the professional acts, errors and omissions of Provider’s profession and work hereunder, including, but not limited to, technology professional liability errors and omissions if the services being provided are technology-based, in the following minimum limits:
$2,000,000 each claim
Technology professional liability errors and omissions shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City in the care, custody, or control of Provider. If not covered under Provider’s liability policy, such “property” coverage of the City may be endorsed onto Provider’s Cyber Liability Policy as covered property as follows: cyber liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City that will be in the care, custody, or control of Provider.
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 6 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 (5) Cyber Liability:
Coverage shall be sufficiently broad to respond to the duties and obligations as are undertaken by Provider in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations with the following minimum limits:
$2,000,000 per occurrence or claim.
As to commercial general liability and automobile liability insurance, such insurance will provide that it constitutes primary insurance with respect to claims insured by such policy, and, except with respect to limits, that insurance applies separately to each insured against whom claim is made or suit is brought. Such insurance is not additional to or contributing with any other insurance carried by or for the benefit of the City.
c. SUBROGATION WAIVER:
Provider hereby agrees to waive rights of subrogation that any insurer of Provider may acquire from Provider by virtue of the payment of any loss. Provider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Provider, its employees, agents and subcontractors. d. FAILURE TO SECURE:
If Provider at any time during the term hereof should fail to secure or maintain the foregoing insurance, the City shall be permitted to obtain such insurance in Provider’s name or as an agent of Provider and shall be compensated by Provider for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid.
e. ADDITIONAL INSUREDS:
The City, its City Council, boards, commissions, officials, employees, agents, and volunteers shall be named as additional insured(s) under all insurance coverages, except workers’ compensation and professional liability insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.
Additional Insured coverage under Provider’s policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance. Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured(s).
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 7 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 f. SUFFICIENCY OF INSURANCE:
The insurance limits required by the City are not represented as being sufficient to protect Provider. Provider is advised to consult Provider’s insurance broker to determine adequate coverage for Provider. The coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of the coverage carried by or available to Provider; whichever is greater. g. EXCESS OR UMBRELLA LIABILITY:
If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this Agreement, then said policies shall be true “following form” of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this Agreement, including but not limited to, the additional insured, SIR, and primary insurance requirements stated therein. No insurance policies maintained by the indemnified parties or Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until all the primary and excess liability policies carried by or available to the Provider are exhausted.
11. CONFLICT OF INTEREST:
Provider warrants that it is not a conflict of interest for Provider to perform the services required by this Agreement. Provider may be required to fill out a conflict of interest form if the services provided under this Agreement require Provider to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.
12. PROHIBITION AGAINST TRANSFERS:
a. Provider shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of the City Manager. Provider shall submit a written request for consent to transfer to the City Manager at least thirty (30) days in advance of the desired transfer. The City Manager or their designee may consent or reject such request in their sole and absolute discretion. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money against the City under this Agreement may be assigned by Provider to a bank, trust company or other financial institution without prior written consent. b. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock, membership interest, partnership interest, or the equivalent, which shall result in changing the control of Provider, shall be construed as an assignment of this Agreement.
Control means fifty percent or more of the voting power of Provider.
13. APPROVAL OF SUB-PROVIDERS:
a. Only those persons and/or businesses whose names and resumés are attached to this Agreement shall be used in the performance of this Agreement. However, if after the start of this Agreement, Provider wishes to use sub-providers, at no additional costs to the City, then Provider shall submit a written request for consent to add sub-providers including the names of the sub- Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 8 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 providers and the reasons for the request to the City Manager at least five (5) days in advance. The City Manager may consent or reject such requests in their sole and absolute discretion. b. Each sub-provider shall be required to furnish proof of workers’ compensation insurance and shall also be required to carry general, automobile and professional liability insurance (as applicable) in reasonable conformity to the insurance carried by Provider. c. In addition, any tasks or services performed by sub-providers shall be subject to each provision of this Agreement. Provider shall include the following language in their agreement with any sub-provider: “Sub-providers hired by Provider agree to be bound to Provider and the City in the same manner and to the same extent as Provider is bound to the City.” d. The requirements in this Section 13 shall not apply to persons who are merely providing materials, supplies, data or information that Provider then analyzes and incorporates into its work product.
14. PERMITS AND LICENSES:
Provider, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City business license that may be required in connection with the performance of the services and tasks hereunder.
15. REPORTS:
a. Each and every report, draft, work product, map, record and other document produced, prepared or caused to be prepared by Provider pursuant to or in connection with this Agreement shall be the exclusive property of the City.
b. No report, information or other data given to or prepared or assembled by Provider pursuant to this Agreement shall be made available to any individual or organization by Provider without prior approval of the City Manager or their designee. c. Provider shall, at such time and in such form as City Manager or their designee may require, furnish reports concerning the status of services and tasks required under this Agreement.
16. RECORDS:
a. Provider shall maintain complete and accurate records with respect to the services, tasks, work, documents and data in sufficient detail to permit an evaluation of Provider’s performance under the Agreement, as well as maintain books and records related to sales, costs, expenses, receipts and other such information required by the City that relate to the performance of the services and tasks under this Agreement (collectively the “Records”). b. All Records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Provider shall provide free access to the Records to the representatives of the City or its designees during regular business hours upon reasonable prior notice. The City has the right to examine and audit the Records, and to make copies or transcripts therefrom as necessary, and to allow inspection of all proceedings and activities related to this Agreement. Such Records, together with supporting documents, shall be Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 9 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 kept separate from other documents and records and shall be maintained by Provider for a period of three (3) years after receipt of final payment.
c. If supplemental examination or audit of the Records is necessary due to concerns raised by the City’s preliminary examination or audit of records, and the City’s supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of this Agreement or failure to act in good faith, then Provider shall reimburse the City for all reasonable costs and expenses associated with the supplemental examination or audit.
17. NOTICES:
a. All notices shall be in writing and delivered: (i) by hand; or (ii) sent by registered, express, or certified mail, with return receipt requested or with delivery confirmation requested from the U.S. postal service; or (iii) sent by overnight or same day courier service at the party’s respective address listed in this Section.
b. Each notice shall be deemed to have been received on the earlier to occur of: (x) actual delivery or the date on which delivery is refused; or (y) three (3) days after notice is deposited in the U.S. mail or with a courier service in the manner described above (Sundays and City holidays excepted).
c. Either party may, at any time, change its notice address (other than to a post office box address) by giving the other party three (3) days prior written notice of the new address. d. All notices, demands, requests, or approvals from Provider to the City shall be addressed to the City at:
City of Alameda
Planning, Building & Transportation
2263 Santa Clara Avenue, Suite 190
Alameda, CA 94501
ATTENTION: Allen Tai
Phone: (510) 747-6888 / Email: [email protected]
e. All notices, demands, requests, or approvals from the City to Provider shall be addressed to Provider at:
David J. Powers & Associates, Inc.
1871 The Alameda, Ste. 200
San Jose, CA 95126
ATTENTION: Akoni Danielsen
Phone: (408) 454-3406 / Email: [email protected] Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 10 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 f. All updated insurance certificates from Provider to the City shall be addressed to the City at:
City of Alameda
Planning, Building & Transportation
2263 Santa Clara Avenue, Suite 190
Alameda, CA 94501
ATTENTION: Mirna Moreno, Administrative Technician I
Phone: (510) 747-6825 / Email: [email protected]
18. SAFETY:
a. Provider will be solely and completely responsible for conditions of all vehicles owned or operated by Provider, including the safety of all persons and property during performance of the services and tasks under this Agreement. This requirement will apply continuously and not be limited to normal working hours. In addition, Provider will comply with all safety provisions in conformance with U.S. Department of Labor Occupational Safety and Health Act, any equivalent state law, and all other applicable federal, state, county and local laws, ordinances, codes, and any regulations that may be detailed in other parts of the Agreement. Where any of these are in conflict, the more stringent requirements will be followed. Provider’s failure to thoroughly familiarize itself with the aforementioned safety provisions will not relieve it from compliance with the obligations and penalties set forth herein. b. Provider will immediately notify the City within 24 hours of any incident of death, serious personal injury or substantial property damage that occurs in connection with the performance of this Agreement. Provider will promptly submit to the City a written report of all incidents that occur in connection with this Agreement. This report must include the following information: (i) name and address of injured or deceased person(s); (ii) name and address of Provider’s employee(s) involved in the incident; (iii) name and address of Provider’s liability insurance carrier; (iv) a detailed description of the incident; and (v) a police report.
19. TERMINATION:
a. In the event Provider fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Provider shall be deemed in default in the performance of this Agreement. If such default is not cured within two (2) business days after receipt by Provider from the City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the City may thereafter immediately terminate the Agreement forthwith by giving to Provider written notice thereof. b. The foregoing notwithstanding, the City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days’ prior written notice to Provider as provided herein.
c. Upon termination of this Agreement either for cause or for convenience, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. The obligation of the parties under this Section 19.c. shall survive the expiration or early termination of this Agreement.
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20. ATTORNEYS’ FEES:
In the event of any litigation, including administrative proceedings, relating to this Agreement, including but not limited to any action or suit by any party, assignee or beneficiary against any other party, beneficiary or assignee, to enforce, interpret or seek relief from any provision or obligation arising out of this Agreement, the parties and litigants shall bear their own attorney’s fees and costs. No party or litigant shall be entitled to recover any attorneys’ fees or costs from any other party or litigant, regardless of which party or litigant might prevail.
21. HEALTH AND SAFETY REQUIREMENTS.
Provider acknowledges that the City shall have the right to impose, at the City’s sole discretion, requirements that it deems are necessary to protect the health and safety of the City employees, residents, and visitors. Provider agrees to comply with all such requirements, including, but not limited to, mandatory vaccinations, the use of personal protective equipment (e.g. masks), physical distancing, and health screenings. Provider also agrees to make available to the City, at the City’s request, records to demonstrate Provider’s compliance with this Section.
22. COMPLIANCE WITH ALL APPLICABLE LAWS:
During the term of this Agreement, Provider shall keep fully informed of all existing and future state and federal laws and all municipal ordinances and regulations of the City of Alameda which affect the manner in which the services or tasks are to be performed by Provider, as well as all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Provider shall comply with all applicable laws, state and federal and all ordinances, rules and regulations enacted or issued by the City. Provider shall defend, indemnify, and hold City (including its officials, directors, officers, employees, and agents) free and harmless from any claim or liability arising out of any failure or alleged failure to comply with such laws and regulations pursuant to the indemnification provisions of this Agreement.
23. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of California without regard to any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Alameda, State of California.
24. WAIVER:
A waiver by the City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.
25. INTEGRATED CONTRACT:
Subject to the language of Section 30, the Recitals and exhibits are a material part of this Agreement and are expressly incorporated herein. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 12 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both the City and Provider.
26. PREVAILING WAGES:
Provider is 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 1600, 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. Provider agrees to fully comply with such Prevailing Wage Laws if the services are being performed as part of an applicable “public works” or “maintenance” project as defined by the Prevailing Wage Laws and if the total compensation is $1,000 or more. City, upon Provider’s request, shall provide Provider with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.
Provider shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the services available to interested parties upon request; and shall post copies at the Provider’s principal place of business and at the project site. Provider 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.
27. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.
28. COUNTERPARTS:
This Agreement may be executed in any number of counterparts (including by fax, PDF, DocuSign, or other electronic means), each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
29. SIGNATORY:
By signing this Agreement, signatory warrants and represents that they executed this Agreement in their authorized capacity and that by their signature on this Agreement, they or the entity upon behalf of which they acted, executed this Agreement.
30. CONTROLLING AGREEMENT:
In the event of a conflict between the terms and conditions of this Agreement (as amended, supplemented, restated or otherwise modified from time to time) and any other terms and conditions wherever contained, including, without limitation, terms and conditions included within exhibits, the terms and conditions of this Agreement shall control and be primary. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF David J. Powers & Associates, Inc. 13 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24 IN WITNESS WHEREOF, the parties have each caused this Agreement to be duly executed on its behalf as of the Effective Date.
David J. Powers & Associates, Inc CITY OF ALAMEDA
a California Corporation a municipal corporation
Akoni Danielsen Jennifer Ott
President City Manager
RECOMMENDED FOR APPROVAL
Michael Lisenbee
Board Secretary
Allen Tai, Director
Planning, Building & Transportation
APPROVED AS TO FORM:
City Attorney
Cara Silver
Special Counsel
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:
CONTACT
(A/C, No):
FAX
E-MAIL
ADDRESS:
PRODUCER
(A/C, No, Ext):
PHONE
INSURED
REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $
$
$PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOSAUTOS ONLY
NON-OWNED
SCHEDULEDOWNED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTH-
STATUTE
PER
LIMITS(MM/DD/YYYY)
POLICY EXP
(MM/DD/YYYY)
POLICY EFF
POLICY NUMBERTYPE OF INSURANCELTR
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB $EACH OCCURRENCE
$AGGREGATE
$
OCCUR
CLAIMS-MADE
DED RETENTION $
$PRODUCTS - COMP/OP AGG
$GENERAL AGGREGATE
$PERSONAL & ADV INJURY
$MED EXP (Any one person)
$EACH OCCURRENCE
DAMAGE TO RENTED
$PREMISES (Ea occurrence)
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PRO-
JECT LOC
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
11/8/2024
(HD) Heffernan Insurance Brokers
1350 Carlback Avenue
Walnut Creek CA 94596
Elizabeth Lee
925-934-8500
925-934-8278
[email protected]
Travelers Property Casualty Company of America
25674
DAVIJPO-01
Continental Casualty Company
20443
David J. Powers & Associates, Inc.
1871 The Alameda, Suite 200
San Jose CA 95126
Hanover American Insurance Company
36064
State National Insurance Company, Inc
12831
127066454
A
X
2,000,000
X
1,000,000
5,000
2,000,000
4,000,000
X
Y
Y
680-9N831625-23-47
12/3/2023
12/3/2024
4,000,000
A
1,000,000
X
X
X
Y
Y
BA-2R124741-23-47-G
12/3/2023
12/3/2024
A
X
X
2,000,000
CUP-9N831926-23-47
12/3/2023
12/3/2024
2,000,000
C
X
Y
WZ3-9816300-11
1/13/2024
1/13/2025
1,000,000
1,000,000
1,000,000
B
D
Professional Liability
Cyber Liability
EEH288347490
EHJ-ADM00899442
3/26/2024
3/4/2024
3/26/2025
3/4/2025
PER CLAIM / AGGREGATE
PER CLAIM / AGGREGATE
$2,000,000
$2,000,000
Project: DJP&A Job #24-171-O, Alameda Aquatic Center.
The City of Alameda, its City Council, boards, commissions, officials, employees, agents, and volunteers are included as an additional insured and primary on the General Liability and Automobile Liability policies per the attached endorsements, if required. Waiver of Subrogation is included on the Workers Compensation, General Liability and Automobile Liability policies per the attached endorsement, if required.
The City of Alameda Planning, Building & Transportation 2263 Santa Clara Ave., Suite 190
Alameda, CA 94501
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF 11/14/2024
POLICY NUMBER: BA-2R124741-23-47-G
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF POLICY NUMBER: BA-2R124741-23-47-G
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF POLICY NUMBER: 680-9N831625-23-47
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF 2201 Broadway, Suite 602 | Oakland, CA 94612 | (510) 834-3200 www.fehrandpeers.com
November 1, 2024
Natalie Noyes, AICP
Senior Project Manager
David J. Powers & Associates, Inc.
1736 Franklin, Suite 400
Oakland, CA 94612
Subject: Alameda Aquatic Center – Proposal for CEQA Transportation Analysis Services Dear Natalie:
This letter presents Fehr & Peers’ proposal to provide transportation analysis in support of a CEQA document for the proposed Alameda Aquatic Center in the City of Alameda. The proposed project would be located at the west end of Jean Sweeney Park, east of Wilma Chan Way with access on Atlantic Avenue.
The traffic operations analysis for the project will be completed under a separate contract. We will develop the future intersection volumes for the project noise analysis under the traffic operations analysis contract.
Our scope of work, schedule and budget are described below.
SCOPE OF WORK
We will complete the following tasks as part of this scope of work.
Task 1 – Vehicle Miles Traveled (VMT) Assessment
Fehr & Peers will review the State’s Office of Planning and Research (OPR) screening criteria for VMT to determine if the project would screen out of a detailed VMT analysis. Based on our preliminary analysis, the project may qualify as a local-serving use and screen out of a detailed VMT analysis. This scope of work assumes that the project would meet this and possibly other screening criteria and that no quantitative analysis would be needed. We will document compliance with the screening criteria for the project. If the project does not meet any screening criteria, we will consult with City staff to determine the next steps, including potential assumptions and methodology for a detailed VMT analysis.
Task 2 – Project Trip Generation
Typically, reference documents, such as the Institute of Transportation Engineers’ (ITE) Trip Generation Manual are used to estimate vehicle trips generated by a development project. Since the ITE Manual does not include aquatic center as a land use category, we will estimate the trip generation for the project based on the expected program and attendance levels at the proposed Aquatic Center as prepared by others. We will estimate project trip generation for a typical weekday, weekday morning and evening peak hours, weekend, and a weekend peak hour.
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Alameda Aquatic Center Proposal for CEQA Transportation Services November 1, 2024
Task 3 – Access and Circulation Review
Fehr & Peers will assess the project site plan and potential modifications proposed by the project in the public right-of-way on safety, access, and circulation for various travel modes in terms of the following:
Site access and interface with roadway network including sight distance for motor vehicles, bikes, and pedestrians at the Project Driveway on Atlantic Avenue and lane configurations and striping along the project frontage on Atlantic Avenue
Emergency vehicle access
Bus service in the project vicinity and pedestrian connections to the nearest bus stops Vehicular safety, access, and circulation including circulation in the project parking lot and access to the adjacent parking lot
Pedestrian safety, access, and circulation within the site and on the adjacent sidewalks and paths, including provision of a pedestrian crossing across Atlantic Avenue along the project frontage.
Bicycle safety, access, and circulation within the site and on the adjacent streets and paths Bicycle parking including type, quantity, and location
Truck access and loading
Automobile parking supply consistency with City requirements and comparison with estimated demand under typical and peak conditions based on similar assumptions used to develop the trip generation for the project in Task 2
Task 4 – Documentation
Fehr & Peers will summarize our findings and assumptions in a draft memorandum. We will respond to two rounds of comments before finalizing the draft memorandum. If the comments raise issues that are not included in the scope of work or require additional quantitative analysis, Fehr & Peers will consult with David J. Powers & Associates and City staff to determine necessary adjustments to the scope of work.
Additional or modified work may also be required during the project review process if changes are made to the project.
BUDGET
We will complete the tasks in this scope of work on a time-and-materials basis not to exceed $20,550. The table on the next page presents our estimated budget by task.
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF Alameda Aquatic Center Proposal for CEQA Transportation Services November 1, 2024
SCHEDULE
Fehr & Peers will prepare the trip generation estimate within two weeks of receiving a signed contract, a project site plan, and the preliminary program and attendance for the project. We will submit and review the trip generation with the project team before proceeding with the other tasks. We will submit the first draft of the Task 4 memorandum within four weeks of finalizing the project trip generation.
This budget and schedule are valid for the next 60 days.
Please contact Sam ([email protected] or 510.835.1943) with questions or if you need additional information.
We look forward to working with you on this Project.
Sincerely,
FEHR & PEERS
Sam Tabibnia, P.E.
Senior Associate
P24-1360
Senior
Associate
Senior
Engineer Engineer Admin/
Graphics Staff Hours Other Direct
Expenses
Task
Budget
Fehr & Peers Tasks/Billing Rate $325 $210 $180 $165
1 VMT Assessment 1 1 2 1 5 $100 $1,160
2 Trip Generation & Distribution 2 2 10 2 16 $200 $3,400 3 Access and Circulation Review 8 6 16 4 34 $400 $7,800 4 Documentation 8 8 14 6 36 $400 $8,190
Total 19 17 42 13 91 $1,100 $20,550
Budget Estimate for Alameda Aquatic Center for CEQA Transportation Services Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF
David J. Powers & Associates, Inc. 1 Service Provider Agreement G:\Building\ACCOUNTING\Contracts\Current Contracts\David J. Powers & Associates\Agreement - Alameda Aquatic Center & On-Call Services.docx Version 08-22-24
SERVICE PROVIDER AGREEMENT
This SERVICE PROVIDER AGREEMENT (“Agreement”) is entered into this ____ day of _________ 20___ (“Effective Date”), by and between the CITY OF ALAMEDA, a municipal corporation (“the City”), and David J. Powers & Associates, Inc., a California Corporation, whose address is 1736 Franklin, Suite 400, Oakland CA 94612 (“Provider”), in reference to the following facts and circumstances:
RECITALS
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. The City is in need of the following services: Environment Review Services for the Alameda Aquatic Center and for future on-call services. City staff issued an RFQ on 12/19/19 and after a submittal period of forty-three (43) days received twenty-one (21) of timely submitted proposals for on-call environmenta l review services. For the Alameda Aquatic Center project, City staff sought proposa ls from three serv ice providers. City staff reached out to the service providers on the list, interviewed qualified firms and selected the service provider that best meets the City’s needs.
C. Provider is specially trained, experienced and competent to perform the special services which will be required by this Agreement.
D. Whereas, the City C ouncil authorized the City Manage r to execute this agreement on December 3, 2024.
E. The City and Provider desire to enter into an agreement for environm ent review services and on-call services, upon the terms and conditions herein.
AGREEMENT
NOW, THEREFORE, in consideration of the fo rgoing, which are incorporated herein by reference, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Provider agree as follows:
1. TERM:
The term of this Agreement shal l retroactively commence on the 1 st day of October 2024 and shall terminate on the 30 day of June 2027, unless terminated earlier as set forth herein.
The parties may agree to extend the term of this Agreement on a year-by-year basis, for up to two (2) additional years for a total term not to exceed five (5) years. Any extension shall be documented in a signed amendment. In the event that the parties agree to extend the Agreement, all provisions of the Agreement shall remain unchanged.
Docusign Envelope ID: BD600A96-D5F1-43A6-A164-1E920749E0AF