GENERAL CONSTRUCTION CONTRACT between
City of Atwater and Redstone Construction, Inc. Page 11 of 12 hereof, and supersedes any and all prior negotiations, understanding and agreements with respect hereto, whether oral or written.
(k) Supersedes Prior Agreement. It is the intention of the Parties hereto that this Contract shall supersede any prior agreements, discussions, commitments, or representations whether, written, electronic or oral, between the Parties with respect to the subject matter of this Contract.
(l) Mandatory and Permissive. “Shall” and “will” and “agrees” are mandatory. “May” and “can” are permissive.
(m) Headings. Headings used in this Contract are for reference purposes only and shall not be considered in construing this Contract.
(n) Attorney’s Fees and Costs. If any action at law or in equity, including action for declaratory relief, is brought to enforce or interpret provisions of this Contract, the prevailing Party shall be entitled to reasonable attorney's fees and costs, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which such Party may be entitled. (o) Necessary Acts and Further Assurances. The Parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Contract.
(p) Time is of the Essence. Time is of the essence in this Contract for each covenant and term of a condition herein.
GENERAL CONSTRUCTION CONTRACT between
City of Atwater and Redstone Construction, Inc. Page 12 of 12 IN WITNESS WHEREOF, three (3) identical counterparts of this Contract, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Parties hereinabove named, on the day and year first herein written.
CITY OF ATWATER, a Municipal Corporation Redstone Construction, Inc.
By: _______________________________________ By:________________________________________ Lori Waterman, City Manager Contractor licensed in accordance with an act providing for the registration of contractors.
ATTEST:
By: ________________________________________
Kory Billings, City Clerk
APPROVED AS TO FORM:
By:________________________________________
Frank Splendorio, City Attorney
ACCOUNT DATA: LICENSE NO. ______________________________ PROJECT NO. 22-06 TAXPAYER I.D. NO. ________________________ Contract No. _________________________________ VENDOR NO. ______________________________ Project Account No./Amount: ADDRESS: ________________________________ _____________________ / $ ______________________ PHONE: ___________________________________ FAX: _____________________________________
EMAIL: ___________________________________
By: __________________________________________ (SEAL)
Finance Director Verification
CITY COUNCIL
AGENDA REPORT
MEETING
DATE:
April 24, 2023
TO: Mayor and City Council
FROM: Justin Vinson
PREPARED
BY:
Ana Jaramillo, Administrative Assistant II
SUBJECT: Approving an Amended and Restated Agreement with Veolia Water West Operating Service, Inc. for the Operations and Maintenance Program for the Regional Wastewater Treatment Plant (Public Works Director Vinson)
RECOMMENDED COUNCIL ACTION
Motion to approve an Amended and Restated Agreement, in a form approved by the City Attorney, with Veolia Water West Operating Service, Inc. for the Operations and Maintenance Program for the Regional Wastewater Treatment Plant in the amount of $2,031,519; and authorizes and directs the City Manager, or her designee, to execute the contract on behalf of the city; or
Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
In December of 1991, the City of Atwater entered into an agreement with Metcalf and Eddy Services, Inc. (which later became Veolia Water) to oversee the Waste Water Treatment Plant (WWTP) and the City employees that ran the plant. By 1994, it became apparent that the City needed to contract out the actual operations and maintenance portion of the plant, and entered into an agreement with Metcal and Eddie Services, Inc.
In 1997, Professional Services Group, Inc. bought out Metcalf and Eddy Services, Inc. followed by Us Filter operating Services, Inc. buying out Professional Services Group, Inc in 2000 and then Veolia buying out US Filter Operating Services, Inc. in 2004. Since 2004, the plant has been managed and operated under the Veolia brand name.
Since the time Veolia has been performing the operation/maintenance and managing of the WWTP, the City has received excellent service with no fines from the Waterboard.
This is due to the great relationship that Veolia has with the Waterboard and the action plans they create whenever new regulations are placed upon the city. Veolia has also assist city staff with budget preparation each year for the WWTP, and was vital in the buildout of the new WWTP.
CITY COUNCIL
Mike Nelson, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
Veolia currently staffs 8 full-time maintenance workers and 1 full-time plant manager.
The 8 full-time maintenance employees are union employees and are in the same union (ASFME) as the city employees are.
The proposed contract is for a term of 10 years, similar to previous agreements enter into with Veolia, and starts on May 1, 2023. There is no additional scope added to this contract that is not already included in the previous contracts. Every year the cost of the contract will increase by the CPI percentage. This is the only cost increase included in the contract.
II. FISCAL IMPACTS:
The annual cost to provide the maintenance services is $2,031,519 a year. This represents the current 2022-2023 Fiscal Year Budget. The budget adjustment per CPI will be effective July 1, 2023 and will be reflected in the 2023-2024 Fiscal Year Budget.
This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
This item has been reviewed by the City Attorney’s Office.
IV. EXISTING POLICY:
This item is consistent with goal number one (1) of the City's Strategic Plan: to ensure the City's continued financial stability.
V. ALTERNATIVES:
VI. INTERDEPARTMENTAL COORDINATION:
This item has been routed to and reviewed by all departments.
VII. PUBLIC PARTICIPATION:
The public will have an opportunity to speak prior to City Council action.
VIII. ENVIRONMENTAL REVIEW:
This item is not a "project" under the California Environment Quality Act (CEQA) as this activity does not cause either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment, pursuant to Public Resources Code Section 21065.
IX. STEPS FOLLOWING APPROVAL:
Upon City Council approval, the agreement will be routed for signatures.
Agenda Report - Page 3
Submitted by:
Justin Vinson, Public Works Director
Approved by:
Lori Waterman, City Manager
Attachments:
1. Atwater_ Amended and Restated Wastewater Agreement with Veolia
83744.00003\41155333.3
1 AMENDED AND RESTATED AGREEMENT
REGARDING THE
TERMS AND CONDITIONS
FOR
OPERATION AND MAINTENANCE
OF THE
ATWATER WASTEWATER TREATMENT FACILITY
BETWEEN
CITY OF ATWATER
AND
VEOLIA WATER WEST OPERATING SERVICES, INC.
83744.00003\41155333.3
TABLE OF CONTENTS
Page
2 ARTICLE I. PURPOSE...................................................................................................5 ARTICLE II. SCOPE OF SERVICES..............................................................................5 Process Control and Effluent Standards .............................................................................5 Maintenance........................................................................................................................6 Repairs, and Other Costs and Expenses .............................................................................8 Technical Support...............................................................................................................8 Industrial Pretreatment........................................................................................................8 Staffing ...............................................................................................................................8 Testing and Laboratory Analysis........................................................................................8 Security...............................................................................................................................9 Odor and Noise Control......................................................................................................9 Communications.................................................................................................................9 Management Information System.......................................................................................9 Reports................................................................................................................................9 Recommendations on Capital Improvements.....................................................................9 Life Cycle Cost and Capital Protection Program ...............................................................9 Inventory...........................................................................................................................10 Plant Vehicles and Equipment..........................................................................................10 Emergency Situations .......................................................................................................10 Litigation Support.............................................................................................................10 Accounting Records..........................................................................................................11 Supervisory Control and Data Acquisition (SCADA)......................................................11 ARTICLE III. RESPONSIBILITIES OF THE OWNER.................................................12 OWNER’S Representative ...............................................................................................12 Permits ..............................................................................................................................12 Pretreatment Program .......................................................................................................12 Compliance With Laws ....................................................................................................12 Taxes ..............................................................................................................................12 Support..............................................................................................................................12 Expenditures for Capital Improvements and Repairs.......................................................13
83744.00003\41155333.3
TABLE OF CONTENTS
(continued)
Page
3 Combined Sewer Overflow ..............................................................................................13 Notice of Litigation...........................................................................................................13 Sludge Disposal ................................................................................................................13 ARTICLE IV. TERM AND TERMINATION.................................................................13 Term ..............................................................................................................................13 Termination.......................................................................................................................13 ARTICLE V. COMPENSATION...................................................................................14 Base Compensation ..........................................................................................................14 Annual Compensation ......................................................................................................14 Maintenance Limits ..........................................................................................................14 Expenditures for Capital Improvements and Repairs.......................................................14 Changes in Scope of Services...........................................................................................14 ARTICLE VI. RISK MANAGEMENT ...........................................................................15 Indemnification.................................................................................................................15 A. Claims by OWNER ..................................................................................15 B. Claims by Third Parties ............................................................................15 Contractor Insurance.........................................................................................................16 OWNER Insurance ...........................................................................................................16 Performance Standards .....................................................................................................16 ARTICLE VII. MISCELLANEOUS.................................................................................16 IRS Regulations................................................................................................................16 Relationship ......................................................................................................................16 Entire Agreement: Amendments ......................................................................................17 Headings and Attachments ...............................................................................................17 Waiver ..............................................................................................................................17 Assignment .......................................................................................................................17 Non-Discrimination and Equal Opportunity ....................................................................17 Access and Inspection by OWNER..................................................................................18 Force Majeure...................................................................................................................18 Authority to Contract........................................................................................................18
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TABLE OF CONTENTS
(continued)
Page
4 Governing Law .................................................................................................................18 Attorneys’ Fees.................................................................................................................18 Notices ..............................................................................................................................18 Severability.......................................................................................................................19 Survival.............................................................................................................................19 Attachment A Definitions.................................................................................................................
Attachment B Treatment Facilities...................................................................................................
Attachment C Federal, State and Local Requirements.....................................................................
Attachment D Existing Flow and Loading Conditions.....................................................................
Attachment E Inflationary Adjustment to Compensation ................................................................
Attachment F Supervisory Control and Data Acquisition (SCADA)...............................................
Attachment G Insurance Requirements............................................................................................
83744.00003\41155333.3
5 AMENDED AND RESTATED AGREEMENT REGARDING THE
TERMS AND CONDITIONS FOR
OPERATION AND MAINTENANCE
OF THE ATWATER
WASTEWATER TREATMENT FACILITY
THIS AMENDED AND RESTATED AGREEMENT Regarding the Terms and Conditions for Operation and Maintenance of the Atwater Wastewater Treatment Facility (hereinafter referred to as “Agreement”) is entered into on May 1, 2023 by and between the City of Atwater, a California a municipal corporation (“OWNER”) and Veolia Water West Operating Services, Inc., a Delaware corporation (hereafter “Contractor”).
WHEREAS, the OWNER owns the wastewater treatment facilities (hereafter the “Treatment Facilities” as defined in Attachment A and more specifically described in Attachment B);
WHEREAS, the OWNER has authority under the laws of the State of California (the “State”) and desires to enter into a professional services contract for the operation and maintenance of the Treatment Facilities;
WHEREAS, Contractor is experienced in and capable of supplying professional operation and maintenance services to the Treatment Facilities; and WHEREAS, the OWNER desires to engage Contractor to act as its independent contractor in operating and maintaining the Treatment Facilities; NOW, THEREFORE, in consideration of the mutual agreements herein contained, and subject to the terms and conditions herein stated, the parties agree as follows:
ARTICLE I. PURPOSE
During the term of this Agreement, the OWNER agrees to engage Contractor as an independent contractor to operate and maintain the Treatment Facilities, which are owned and controlled by the OWNER. Each party hereto agrees that it will cooperate in good faith with the other, its agents and subcontractors to facilitate the performance of the mutual obligations set forth in this Agreement.
ARTICLE II. SCOPE OF SERVICES
The scope of services to be provided by Contractor under this Agreement will include the management, operation, maintenance, and repair of the Treatment Facilities to the extent specifically set forth in this Article II (hereinafter the “Scope of Service”):
Process Control and Effluent Standards
Contractor’s goal is to operate the Treatment Facilities to meet all the Effluent Requirements, as defined in Attachment A, of the existing National Pollutant Discharge Elimination System (“NPDES”) permit as well as any other federal, state and local requirements set forth in
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6 Attachment C to this Agreement. Contractor shall use its best reasonable efforts to provide this level of treatment provided that influent flow does not exhibit the following characteristics:
1.) Flows of over 9.3million gallons during a 24-hour period or average flows over a thirty day period in excess of 6.0 million gallons per day.
2.) Loading which exceeds the following levels, averaged over a thirty day period.
BOD5 11,659 lbs./day
TSS 14,512 lbs./day
In the event that influent flows or loadings exceed the preceding levels, Contractor shall provide the best treatment reasonably possible within the constraints of the Treatment Facilities design and physical limitations and existing loadings.
In the event that Abnormal or Biologically Toxic Material, as defined in Attachment A, is received at the Treatment Facilities, Contractor shall promptly notify the OWNER and use its best reasonable efforts to assist the OWNER to remove and/or reduce such material using the processes and equipment provided at the Treatment Facilities. If such Abnormal or Biologically Toxic Material cannot be treated or removed using the processes and equipment provided at the Treatment Facilities, Contractor shall not be responsible for compliance with the NPDES permit, the Clean Water Act, as amended (“CWA”), the Resource Conservation Recovery Act, as amended, (“RCRA”), the Comprehensive Environmental Response, Compensation and Liability Act, as amended, (“CERCLA”) and any other applicable federal, state or local requirements, or for any other consequence of the receipt by the Treatment Facilities of such Abnormal or Biologically Toxic Material.
In the event that Discharge Violations, as defined in Attachment A, occur on any date starting 30 or more days after the beginning of wastewater treatment services by Contractor, Contractor shall be responsible for fines or damages for Discharge Violations that may be imposed by the federal, state or local environmental agencies, or private actions, if such violations were within Contractor’s reasonable control and are the result of Contractor’s failure to operate the Treatment Facilities in accordance with the terms of this Agreement and such failure is a direct and substantial cause of such Discharge Violation. Prior to payment of fines, Contractor reserves the right to contest government or private actions, suits or proceedings for Discharge Violations through administrative procedures or otherwise. Contractor liability in any contract year for any fines shall be limited to a maximum of One Million Dollars ($1,000,000).
During any construction or other modification of any of the Treatment Facilities, the OWNER and Contractor will work together to maintain access and minimize disruption and outages to the existing equipment and components. Contractor shall not be responsible for Discharge Violations caused in whole or in part by the construction activity.
Maintenance
Contractor shall perform routine maintenance, consisting of preventative maintenance tracking, corrective maintenance scheduling and spare parts inventory control, cleaning and lubrication of
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7 service equipment, equipment inspections and adjustments, and building and grounds janitorial services for the Treatment Facilities and to all equipment, and instrumentation provided to Contractor by the OWNER through this Agreement in accordance with the Contractor standards and budget established for the Treatment Facilities. See Article V, Maintenance Limit.
Contractor shall keep the Treatment Facilities in a neat and orderly condition.
The scope of services to be provided by Contractor under this Agreement will include the management, operation, maintenance, and repair of the tertiary wastewater treatment plant at 530 S. Bert Crane Rd., Atwater, CA and the lift station at 621 Industry Way, Atwater, CA (“Treatment Facilities”).
Repairs, and Other Costs and Expenses
Contractor shall pay expenses required for the normal and routine operation, maintenance and repair of the Treatment Facilities including the following: personnel costs, fuels, chemicals, water, and expendable supplies, during the term of this Agreement, and up to the limit of the budget for maintenance and repair cost. One hundred percent (100%) of the unused portion of the annual repair and maintenance budget will be refunded to the OWNER.
The budget shall be adjusted annually to reflect the requirements for the repair of the Treatment Facilities. Unless otherwise agreed in writing by the parties, Contractor will not be required to pay the following:
• Expenses resulting from a change in Scope of Services • Expenses resulting from a change in the OWNER’S NPDES permit, law, or regulations by any federal, state, or local agency or authority
• Any damages which result from force majeure, as defined herein, the acts of OWNER, or any third party.
• Expenses of operational costs arising from processing sewage or sludge from communities other than Atwater and Winton
• Expenditures for Capital Improvements and Repairs, as defined in Attachment A • Expenses arising from emergency sewer repair or replacement of sewer lines • Expenses related to municipal or private surveillance and alarm monitoring by an outside agency
• Fire protection
• Costs for Vehicle Repairs [excluding plant pickups]
• Pretreatment studies - Implementation of the Pretreatment Plan • Professional engineering fees
83744.00003\41155333.3
8 Contractor shall perform repair work on individual tasks up to $5,000 per incident and up to $90,000 per year.
Contractor shall not be required to pay expenses related to electricity and all other utilities, expenses related to start-up and decommissioning work that is not routine operation and maintenance, UV bulb replacements (Capital Expense), In addition, Contractor shall not be responsible to pay expenses of operational costs arising from processing sewage or sludge from communities other than Atwater, Winton, Castle Aviation and Development Center, and the Atwater Federal Prison.
Technical Support
The Contractor Technical Support Group shall provide on-call backup advice in process control, management, maintenance and plant repair as necessary to assist the Treatment Facilities Staff and ensure performance of its obligations under this Agreement.
Industrial Pretreatment
Contractor shall upon written request assist the OWNER by providing technical and analytical services, in connection with OWNER’s pretreatment program. Contractor shall not be responsible for any enforcement activities.
Staffing
Contractor shall provide an experienced plant manager with skills to include personnel administration, wastewater treatment, public relations, and communications necessary for the operation, maintenance, and repair of the Treatment Facilities. Contractor shall also provide personnel with facility operator licenses equal to or greater than those required for a class IV WWTF: [California Grade 4 Wastewater Certification required for Chief Plant Operator].
Testing and Laboratory Analysis
Contractor shall perform the sampling and laboratory analysis required by the OWNER’S NPDES permit as well as that necessary for process control. Laboratory procedures and analysis shall conform to the then current edition of Standard Methods for the Examination of Water and Wastewater or be in accordance with testing requirements of the NPDES permit. Contractor shall prepare the data for all NPDES permit monitoring and operating reports and shall deliver and certify such results to the OWNER and assist the OWNER in submitting such results to all required regulatory agencies. Contractor shall submit routine (Monthly, Quarterly Annual ) monitoring and operating reports to the regional water Board. Contractor’s plant manager shall be a signatory for the permit as required by statute. Nonroutine reports and letters regarding the OWNER’s permit are signed by the OWNER.
Once each year, at a time to be determined in advance by the OWNER, Contractor shall prepare and submit an annual report that records significant events of the past year, describes the status of the Treatment Facilities, and compares the status to planned activities.
83744.00003\41155333.3
9 Security
Contractor shall use reasonable efforts to secure the Treatment Facilities within the limits of existing security devices. Any losses or other liabilities resulting from the theft, damage, or unauthorized use of OWNER property properly secured within the limits of the existing security devices shall be borne by the OWNER.
Odor and Noise Control
Contractor shall operate the treatment facilities using methods which will minimize odor and noise within the limits and capabilities of Treatment Facilities.
Communications
Contractor shall develop an informal communications, publicity and community relations program in order to keep the OWNER informed about the operation and maintenance of the Treatment Facilities. Contractor shall prepare written summaries of all formal meetings with the OWNER and provide the OWNER with a copy. Contractor will deal in a professional manner with community groups concerned with any aspect of the operation of the Treatment Facilities.
Management Information System
Contractor shall install necessary computer hardware and software to provide a comprehensive preventive maintenance management system and a computerized process control system Upon termination of this Agreement, the computer hardware and software will become the OWNER’s property provided the OWNER enters into a software use agreement with Contractor.
Reports
Contractor shall maintain records of operations, maintenance, repair, and improvement activities at the Treatment Facilities and shall prepare and submit to the OWNER a monthly report including a narrative summary of operations and all data required for monthly discharge reporting to local, state, and federal agencies.
Contractor shall prepare a year-to-date financial summary of expenditures. This report will be submitted as part of the appropriate monthly report.
Once each year, at a time to be determined in advance by the OWNER, Contractor shall prepare and submit an annual report that records significant events of the past year, describes the status of the Treatment Facilities, and compares the status to planned activities.
Recommendations on Capital Improvements
Contractor shall, on request by OWNER, prepare and submit recommendations for necessary capital repairs, replacements, and expenditures for Capital Improvements and Repairs.
Life Cycle Cost and Capital Protection Program
83744.00003\41155333.3
10 Contractor and the OWNER agree that all efforts must be made to improve the facilities equipment and unit process efficiencies. Both parties will work together to identify, design, construct and implement all justified Life Cycle Cost Projects at the Treatment Facilities. Where approved by the OWNER, Contractor will be authorized to readjust current and future cost savings, to the facilities and equipment. All facilities supplied by these provisions will become the sole property of the OWNER at the completion of their life cycle term payments.
Inventory
Contractor shall maintain an up-to-date inventory list and will project a reasonable number of spare parts in stock (including standard lubricants, long-lead-time replacement items, and similar items) in accordance with recommendations by manufacturer. Contractor shall replenish such items as described in Article V - Maintenance Limits.
Plant Vehicles and Equipment
The Public Works Director may authorize Contractor to use OWNER’s vehicles and equipment during the course of normal operations and maintenance activities. OWNER agrees to perform all preventive maintenance and corrective maintenance that is normally required of these vehicles and equipment. The cost of repairs will be the responsibility of the OWNER. However, Contractor will be responsible for all repairs that are required as a direct result of their negligence or abuse.
Emergency Situations
In the event of sudden damage or destruction of the Treatment Facilities or an emergency which in the reasonable judgment of Contractor is likely to result in material loss or damage to the Facilities or constitute a material threat to human health or safety, Contractor may suspend operations of the Treatment Facilities and may make such emergency repairs, without the consent of the OWNER, as are necessary to mitigate or reduce such loss, damage or threat.
Contractor shall provide prompt notice to the OWNER of any such damage, destruction or threat and of any emergency repairs which have or will be taken. OWNER and Contractor shall cooperate in good faith in pursuing reasonable measures to mitigate any threats to human health or safety.
OWNER shall be responsible for the direct payment or reimbursement to Contractor of all costs reasonably or unavoidably incurred by Contractor in responding to such emergency situation including emergency repairs. Such Contractor costs may include direct labor charges at standard Contractor rates, for services exceeding those required pursuant to this Agreement as long as the labor charges are less than $5,000. Should Contractor labor estimates exceed $5,000, Contractor will utilize best efforts to gain verbal and written approval from an OWNER authorized representative prior to commencing emergency repair activities.
Litigation Support
At the request of the OWNER, Contractor will provide or arrange for, at OWNER’s expense, legal, regulatory or technical assistance in connection with the OWNER’s defense or prosecution
83744.00003\41155333.3
11 of any actions, claims, suits, administrative or arbitration proceedings or investigations, whether pending, threatened or newly initiated.
For services, the OWNER shall pay Contractor its total costs incurred in its performance of such services multiplied by 1.06.
Accounting Records
Contractor shall maintain up-to-date financial records as they apply to the terms of this Agreement. All records will be kept in accordance with generally accepted accounting principles.
Supervisory Control and Data Acquisition (SCADA)
The additional services contracted in 2010, reflected in the document entitled “Scope of Professional Services - Supervisory Control and Data Acquisition (SCADA),” attached hereto as Attachment F, and incorporated by reference herein, reflects the additional scope of work necessary for the SCADA program and operation of the new Treatment Facilities. This scope of work was completed and the new Treatment Facilities started operation in June 2012.
For programming services, after the satisfaction of services under Attachment F, Contractor will perform any and all programming for the equipment and systems installed and completed under Attachment F at no additional charge to the OWNER during the continuation of the Agreement between Contractor and OWNER after such programming is no longer done and warranted by the applicable providers, vendors, manufacturers or contractors. Any new equipment or systems that are, or were not part of the scope of services in Attachment F are excluded from this provision. This provision is specifically to assure that the PLC and SCADA systems remain current, are refined, enhanced, and are at all times performing their intended function as originally designed to support operations. A Rockwell Technical Support Agreement, which assures access to all required services for maintaining the SCADA software systems shall remain in place during the term of the Agreement at no additional cost to the OWNER. Contractor shall provide the negotiation with the manufacturer and execution of this Agreement as part of a larger negotiated agreement within the West Region of Veolia Water at no additional cost to the OWNER. Design content within the PLC and graphical displays constituting the SCADA systems shall be the responsibility of Contractor’s Technical Project Manager for presentation and effectiveness. Contractor’s Project Manager and the OWNER or its designated representatives can present requests and ideas freely for consideration of incorporation into the total automated system as well as identify any system needs. Although Contractor provides no hardware or non-Rockwell software warranty for the systems provided by others, Contractor technical resources shall include configuration upgrades and other routine functions relevant to the operating systems installed and as recommended by the manufacturer to assure functionality and proper condition. This Agreement makes no claim to provide warranty or non-warranty hardware replacement or repairs for the system computer hardware provided by others as part of the “Atwater Regional WWT Plant at Bert Crane” as defined in this document. If the Agreement provides for post-warranty servicing of SCADA and PLC systems, the Contractor Technical Manager shall perform, or supervise and assure qualified individuals perform all such work as required to maintain the systems.
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12 ARTICLE III. RESPONSIBILITIES OF THE OWNER
OWNER’S Representative
On or before the date services are to commence under this Agreement, the authorized representative for the OWNER shall be the City Manager or his or her designee (“Authorized Representative”), who shall administer this Agreement. OWNER may change its authorized representative by written notice as provided in this Agreement.
Permits
The OWNER shall be responsible for obtaining and maintaining all necessary permits and licenses and for the payment of all fees required for ownership and operation of the Treatment Facilities and the equipment owned by the OWNER and used in connection with the Treatment Facilities.
Pretreatment Program
The OWNER shall enact, maintain, and enforce an industrial pretreatment program that complies with state and local standards, all relevant permits, and with the CWA.
Compliance With Laws
Except to the extent specifically delegated to Contractor in this Agreement, the OWNER shall comply with all applicable local, state, and federal laws, codes, ordinances, and regulations as they pertain to the Treatment Facilities. Contractor shall assist the OWNER in complying with all such laws, codes, ordinances, and regulations as they pertain to the Treatment Facilities. The OWNER shall be responsible for any fines or penalties arising out of noncompliance by OWNER with all such laws.
Taxes
The OWNER shall be responsible for all real estate, personal property, utility, excise, and sales tax applicable to the Treatment Facilities, or the services provided for under this Agreement.
In the event Contractor is required to pay any sales tax or use taxes on the value of the services provided by Contractor hereunder or the services provided by any subcontractor of Contractor, such payments shall be reimbursed by the OWNER unless the OWNER furnishes a valid and properly executed exemption certificate relieving the OWNER and Contractor of the obligation for such taxes.
In the event the OWNER furnishes an exemption certificate which is invalid or not applicable to services by Contractor, the OWNER shall indemnify Contractor for any taxes, interest, penalties, and increment costs, expenses or fees which it may incur as a result of Contractor’s reliance on such certificate.
Support
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13 The OWNER shall permit use by Contractor, without charge, of all equipment, structures, facilities, and vehicles under its ownership and presently assigned to the Treatment Facilities or as specified in future equipment or construction specifications. The OWNER shall provide Contractor with all information necessary to operate and maintain the Treatment Facilities.
Expenditures for Capital Improvements and Repairs
The OWNER is responsible for undertaking and payment of Expenditures for Capital Improvements and Repairs, as defined in Attachment A, which become necessary under this Agreement. Contractor’s obligations under this Agreement are predicated upon the OWNER’s completing necessary Expenditures for Capital Improvements and Repairs at the Treatment Facilities.
Combined Sewer Overflow
The OWNER shall be responsible for complying with applicable Combined Sewer Overflow regulations under local, state, and federal laws.
Notice of Litigation
In the event that that the OWNER or Contractor receives notice of or undertakes the defense or the prosecution of any actions, claims, suits, administrative or arbitration proceedings or investigations in connection with the Treatment Facilities, the party receiving such notice or undertaking such prosecution shall give the other party timely notice of such proceedings and will inform the other party in advance of all hearings regarding such proceedings.
Sludge Disposal
The OWNER shall contract with appropriate parties for the disposal of screenings and grit, wastewater sludges (“Process Residual”) at a location determined by the OWNER. Title, ownership responsibility for the Process Residual shall remain with the OWNER.
ARTICLE IV. TERM AND TERMINATION
Term
The expiration of the term of this Agreement shall be April 30, 2033, unless otherwise extended or terminated.
Termination
Upon material breach by Contractor to this Agreement, the OWNER may terminate the Agreement provided that written notice of such breach is first provided and the breach is not cured or corrected within thirty (30) calendar days of receipt of such notice.
The Agreement may be terminated by the OWNER without cause on one hundred and twenty (120) calendar days’ prior notice to the non-terminating party.
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14 ARTICLE V. COMPENSATION
Base Compensation
Contractor shall be paid an annual fee not to exceed $2,031,519 for performance of the services pursuant to this Agreement. Contractor shall submit installment invoices (in an amount equal to the annual fee divided by 12) to the City Finance Director on a monthly basis. Upon receipt and approval of the Contractor’s invoices, the City shall remit payment to the Contractor for services provided within thirty (30) days. Payment to Contractor shall be considered as full compensation for performing the services.
OWNER’s failure to discover or object to any unsatisfactory work or billing prior to payment will not constitute a waiver of OWNER’s right to request Contractor to correct such work or billings or seek any other legal remedy.
Annual Compensation
The base compensation set forth above ($2,031,519.00) shall be adjusted by the Inflationary Adjustment as provided in Attachment E. It is agreed by both parties that under no condition, following adjustments in Base Compensation, will the variable portion of the annual fixed fee exceed 20% of the total compensation.
Maintenance Limits
Contractor shall pay for repair parts, maintenance materials, and maintenance services necessary during the term of this Agreement provided that the aggregate amounts which it shall be required to pay shall not exceed $111,828 per year (the “Maintenance Cap”) during the first year Fiscal Year 2022-23 of the Agreement. All unused portions of this budget will be returned to the OWNER. The Maintenance Cap shall be adjusted annually thereafter, by the Inflationary Adjustment to Compensation formula found in Attachment E or otherwise by written agreement of the parties.
The OWNER shall pay for all necessary costs incurred over the Maintenance Cap at actual costs.
Expenditures for Capital Improvements and Repairs
Contractor shall not be responsible for Expenditures for Capital Improvements and Repairs, as defined in Attachment A. Except as provided in Article II, Emergency Situations, prior to proceeding with repairs or replacements, Contractor shall submit to the OWNER for approval all proposed Expenditures for Capital Improvements and Repairs. Each request will identify the Expenditures for Capital Improvements and Repairs needed, the cause, the estimated costs, and the degree of urgency. Contractor shall submit annually an estimated budget for the following fiscal year for proposed Expenditures for Capital Improvements and Repairs, if any, to be provided by the OWNER.
Changes in Scope of Services
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15 In the event that Contractor shall perform additional work or services involving the management, operation, maintenance, and repair of the OWNER’s Treatment Facilities where such services or work exceeds or changes the Scope of Services under this Agreement, Contractor and the OWNER shall meet and prepare a written amendment to this Agreement.
Changes in the Scope of Services include, implementing Industrial Pretreatment Program but are not limited to, requests for additional services by the OWNER, additional cost incurred in treating Abnormal or Biologically Toxic Material, disposing of sludge, meeting new or changed government regulations or reporting operating the Treatment Facilities, or, arising from construction or modification of the Treatment Facilities.
ARTICLE VI. RISK MANAGEMENT
Indemnification
A. Claims by OWNER
With respect to any and all claims by OWNER including demands for indemnity based on claims by third parties, Contractor agrees to indemnify, defend with counsel selected by OWNER, and save harmless the OWNER and each of its elected or appointed officers, employees and agents from and with respect to any claims, demands, suits, liabilities, losses and expenses, including attorneys’ fees and disbursements incurred by OWNER, which are caused solely by the negligent acts or omissions of Contractor in the performance of its services under this Agreement; provided, however, that in the event that both OWNER and Contractor shall be responsible for the portion of the liability equal to its comparative share of the total negligence; provided, further, however, that with respect to any loss, damage, injury or other claims made by OWNER as a result of or based upon the presence, removal, handling storage, release, discharge, escape or other disposition of any hazardous substances, waste, pollutants or contaminant, Contractor’s obligations to OWNER for indemnity or otherwise shall not apply (i) if such presence removal, handling, storage, release, discharge, or other disposition is required by, or executed in accordance with local, state or federal law, rule or regulation; or (ii) unless such loss, damage, injury or claim results from the gross negligence, willful misconduct or intentional omission.
Contractor shall not be liable for indirect or consequential damages, including but not limited to, loss of profits or revenue or loss of the use of the facilities, based upon contract, negligence or any other cause of action.
B. Claims by Third Parties
OWNER agrees that, with the exception of such liability as may arise solely out of the negligence, misconduct or omissions of Contractor in performing services under this Agreement, OWNER shall indemnify, defend and hold harmless Contractor, its directors, officers, employees and agents from and against any and all claims, by persons or legal entities other than OWNER for losses, damages, liabilities and costs, arising under local, state or federal laws, including but not limited to the CWA, CERCLA or RCRA and directly or indirectly connected with the presence, discharge, release, disposal, or escape of hazardous substances, waste, pollutants or contaminants of any kind, at OWNER’s Treatment Facilities. Contractor shall indemnify defend and hold harmless OWNER, its directors, officers, employees and agents from and against any
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16 and all claims, by persons or legal entities, for losses, damages, liabilities and costs, fines and penalties resulting from Contractor’s negligence, misconduct or omissions of Contractor in performing services under this Agreement.
Contractor Insurance
Contractor shall comply with the insurance requirements in Attachment G.
OWNER Insurance
The OWNER will purchase and maintain property and structures liability insurance and flood and fire insurance policies, including extended coverage plus coverage for vandalism, theft and malicious mischief to the full insurable value of the Treatment Facilities. Contractor shall be named as an additional insured during the term of this Agreement.
The OWNER and Contractor agree that with respect to insurance coverage carried by either party in connection with the Treatment Facilities, such insurance will provide for the waiver by the insurance carrier of any subrogation rights against the OWNER or against Contractor as the case may be.
Performance Standards
Contractor shall comply with all applicable laws now in force or which may hereafter be in force with regard to the provision of services and this Agreement.
For any project performed by Contractor subject to prevailing wage, Contractor must comply with all prevailing wage laws and must be registered with the Department of Industrial Relations (“DIR”) and must include their DIR registration number. Pursuant to Labor Code Section 1770, Contractor shall pay not less than the prevailing rate of per diem wages, including, but not limited to, overtime, Saturday, Sunday, and holiday work, travel and subsistence, as determined by DIR pursuant to Labor Code Section 1773. Contractor shall comply with Labor Code Section 1776. Regulations implementing Section 1776 are located in Section 16000 and Sections 16401 through 16403 of Title 8 of the California Code of Regulations. Contractor shall be responsible for compliance by Contractor’s subcontractors. Pursuant to Labor Code section 1771.4, Contractor is required to post all job site notices prescribed by law or regulation that include payment of prevailing wages.
Contractor represents that it has the skills, expertise, licenses and permits necessary to perform the services. Contractor shall perform all such services in the manner and according to the standards observed by a competent practitioner of the same profession in which Contractor is engaged and in accordance with applicable industry standards. Permits and/or licenses shall be obtained and maintained by Contractor without additional compensation throughout the term of this Agreement.
ARTICLE VII. MISCELLANEOUS
IRS Regulations
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17 It is the intention of the parties to comply with the provisions of the IRS Regulations regarding management contracts in connection with tax-exempt bond financed property of the facilities. If at any time during the term of this Agreement it is determined that any provisions of this Agreement is not in compliance with the above referenced provisions of the IRS Regulations, then the parties agree that they shall amend such non-complying provisions so as to bring them into compliance. The parties agree to negotiate any such amendment in good faith.
Relationship
The relationship of Contractor to the OWNER is that of independent contractor and not one of employment. None of the employees or agents of Contractor shall be considered employees of the OWNER. Contractor shall be entitled to no other benefits or compensation except as provided in this Agreement. For the purpose of all state, local and federal laws and regulations, the OWNER shall exercise primary management and operational and financial decision-making authority.
Entire Agreement: Amendments
This Agreement represents the entire and integrated Agreement between City and Contractor and supersedes all prior negotiations, representations, and Agreements regarding the subject matter of this Agreement, either written or oral. This Agreement may be modified only by a written amendment signed by both parties.
Headings and Attachments
The headings contained in this Agreement are for reference only and shall not in any way affect the meaning or interpretation of this Agreement. The Attachments to this Agreement are incorporated herein by this reference and shall be construed as an integral part of this Agreement.
Waiver
The failure on the part of either party to enforce its rights as to any provision of this Agreement shall not be construed as a waiver of its rights to enforce such provisions in the future.
Assignment
Contractor shall not assign or transfer any interest in this Agreement without the prior written consent of OWNER.
Non-Discrimination and Equal Opportunity
Contractor shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Contractor under this Agreement. Contractor shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this
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18 Agreement, including but not limited to the satisfaction of any positive obligations required of Contractor thereby. Contractor shall include the provisions of this section in any subcontract approved by the OWNER.
Access and Inspection by OWNER
The OWNER shall have the right to inspect the Treatment Facilities and equipment during normal business hours. A Contractor representative shall be notified prior to and permitted to observe the inspection. Contractor shall provide the OWNER with access, during normal business hours and upon reasonable prior notice, to Contractor’s financial and operating records related to the Treatment Facilities for the purpose of auditing costs or verifying Contractor’s performance under this Agreement.
Force Majeure
A party’s performance of any obligation under this Agreement shall be excused if, and to the extent that, the party is unable to perform because of causes beyond its reasonable control or force majeure, which shall include but shall not be limited to, Acts of God, the acts of civil or military authority, floods, epidemics, quarantine restrictions, riots, strikes, commercial impossibility, epidemics, fires, explosions and bombings to any of the foregoing. In the event of any such force majeure, the party unable to perform shall promptly notify the other party of the existence of such force majeure and shall be required to resume performance of its obligations under this Agreement upon the termination of the aforementioned force majeure.
Authority to Contract
Each party warrants and represents that it has power and authority to enter into this Agreement and to perform the obligations, including any payment obligations, under this Agreement.
Governing Law
The laws of the State of California shall govern this Agreement. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Merced.
Attorneys’ Fees
If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
Notices
All notices will be in writing and will be delivered in person or transmitted by certified mail, return receipt requested. Notices required to be given to Contractor will be addressed to:
Veolia Water West Operating Services, Inc.4160
Temescal Canyon Road Suite 311
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19 Corona, CA 92883
Notices required to be given to the OWNER will be addressed to:
Lori Waterman
City of Atwater
750 Bellevue Road
Atwater, CA 95301
Severability
If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
Survival
The obligations of this Agreement, which by their nature would continue beyond the term or expiration of the Agreement, including without limitation, obligations regarding indemnification, shall survive the term or expiration of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as of the date first above written.
ATTEST: OWNER:
CITY OF ATWATER
By:
ATTEST: VEOLIA WATER WEST OPERATING
SERVICES, INC.
By:
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20 Attachment A
Definitions
“Abnormal or Biologically Toxic Material” is defined as any substance or combination of substances contained in the plant influent in sufficient concentrations so as to (i) interfere with the biological processes necessary to remove the organic or chemical constituent of the wastewater or cause a failure to meet the discharge requirements of the OWNER’s NPDES permit or (ii) create effluent, sludges, or other material classified as a hazardous waste under RCRA. Abnormal or Biologically Toxic Materials include but are not limited to heavy metals, phenols, cyanides, pesticides, or herbicides, priority pollutants as listed by US EPA, or any substance that violates the local or US EPA industrial pretreatment standards or any applicable Sewer Use Ordinance.
“Adequate Nutrients” are defined as plant influent nitrogen, phosphorus and iron contents proportional to BOD5 in the ratio of five (5) parts nitrogen, one (1) part phosphorus, and one half (0.5) part iron for each hundred (100) parts BOD5.
“Baseline Conditions” is defined as the existing Flow and Loading conditions specified in Attachment D.
“Discharge Violation” is defined as any violation of the Effluent Requirements as defined herein. “Effluent Requirements” is defined as the following:
30 Day Avg. Max 7 Day Avg.
BOD5 30 90 45
TSS 30 90 45
“Expenditures for Capital Improvements and Repairs” are defined as any expenditure for equipment, major repair or replacement, or structure that significantly extends service life, represents a nonroutine type of purchase, and costs in the amount of $5,000 or more. “Treatment Facilities” are defined as all equipment, vehicles, grounds, sewers, and facilities described in Attachment B.
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21 Attachment B
Treatment Facilities
NPDES # CA007197
(1) Facilities
Wastewater Treatment Facility located at
530 S. Bert Crane Rd
Atwater, CA 95301
Lift/Pump Station/Collection System located at
621 Industry Way
Atwater, CA 95301
(2) Equipment
All equipment associated with the Wastewater Treatment Plant Facility and the lift/pump station at 621 Industry Way
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22 Attachment C
Federal. State and Local Requirements
(Attach NPDES Permit CAG585001)
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23 Attachment D
Existing Flow and Loading Conditions
The OWNER represents that the following are the flow and loadings conditions at the Treatment Facilities (the “Baseline Conditions”) and that the existing flow and loadings conditions meet all the standards or requirements set forth in the OWNER’s Sewer Use ordinance and meet all the standards or requirements of the CWA, and contain Adequate Nutrients, as defined in Attachment A:
Wastewater
Average Flow (mgd) Average Loadings (lbs./day)
3.16 mgd BOD5 6,483 lbs./day
SS 5,761 lbs./day
BOD5 (“Biochemical Oxygen Demand -- 5 day”) loading and SS (“Suspended Solids”) loading are to be determined as follows:
Monthly BOD5 Loading (lbs/day) = (monthly average of daily plant influent BOD5 in mg/l) x (monthly
average influent flow in mgd) x
(8,34 lbs./gallon)
Monthly SS Loading (lbs/day) = (monthly average daily plant influent suspended solids in
mg/l) x (monthly average influent
flow in mgd.) x (8.34 lbs./gallon)
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Attachment E
Inflationary Adjustment to Compensation
Base Compensation shall be annually adjusted each July 1, based upon the change in the twelve months in the prior calendar year to the Consumer Price Index for All Urban Consumers (CPI-U) not seasonally adjusted, as published by the U.S. Department of Labor, U.S. Bureau of Labor Statistics. The percentage change in compensation shall be applied to the previous month's compensation to determine the new monthly payment amount, as follows:
New Monthly Amount = Previous Monthly Amount x (1+C)
In addition, to prevent any underpayments a lump sum adjustment shall be made annually on July 1st based upon the following:
Annual
Adjustment = 12 months x previous monthly amount x (C/2) EXAMPLE:
Base CPI-U = 147.4
New CPI-U = 149.6
PERCENT CHANGE IN CPI-U
CPI-U (149.6 - 147.4)/147.4 = 1.49%
Percent change in compensation (C) = 1.49%
New Monthly Amount = Previous Monthly Amount x (1+C)
$73,231.00 = $72,000 x (1+..0149)
Annual Adjustment = 12 months x previous monthly amount x (C/2) $6,436.8 = 12 months x $72,000 x (.0149/2)
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Attachment F
Supervisory Control and Data Acquisition (SCADA)
Provided by: Veolia Water West Operating Services
Services Provided: SCADA Application Programming as Identified in the Contract Documents for the City of Atwater Bert Crane Wastewater Treatment Plant Improvements Project 2009 (City Project No. 06-2) (Foundation Documents) Location: 530 Bert Crane Road, Atwater Regional Wastewater Treatment Plant Foundation Documents for Stated Scope of Services Provided Conformed to Addenda Drawings Submitted by Bruce G. West Principal in Charge RCE24118 as prepared by West Yost Associates Consulting Engineers titled “Bert Crane Wastewater Treatment Plant Improvements Project 2009
Design Specifications titled “Contract Documents for the City of Atwater Bert Crane Wastewater Treatment Plant Improvements Project 2009 — December 2009 — Conformed to Addenda Terminology Used in this document:
AFD = Adjustable Frequency Drive. An electronic assembly that changes frequency of the electrical voltage supply to alternating current motors to adjust speed.
CompactLogix = Allen-Bradley programmable logic controller (see PLC) used as the specified main PLC for plant processes
HMI = Human Machine Interface
I/O = Input and Output. An acronym which is used to represent connections to a Programmable Logic Controller. (see PLC). I/O can be digital (values as 0/1) or analog (variable values).
LOI = Local Operator Interface
O1 = Operator Interface
PV = PanelView
LOI, O1, and PV are all used interchangeably for representing a small graphical display showing machine or process information usually mounted in a control panel that is located in the equipment or process areas.
PLC = Programmable Logic Controller. A custom programmable electronic assembly that consists of a power supply, a central processing unit, and communication ports which is used to control processes by monitoring signals from various field devices and actuating outputs as defined in the custom logic program.
SCADA = Supervisory Control and Data Acquisition. A term for the totality of automated equipment which allows plant automation. Often misused, SCADA actually represents a combination of automated equipment working in concert to provide a total control configuration.
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BASIS for Proposed Scope of Services
1. Fee basis will be a Time and Material agreement using previously submitted cost of $384,000 as the not-to-exceed amount.
Progress billing shall be requested monthly
Progress billing requests shall be submitted to the City engineer on the last Monday of last full week of each month
Presentation of the progress billing requests shall provide the value of the current billing, the percentage of the total amount of the not-to-exceed value, and show the amount remaining after the amount of the current billing.
Presentation of the progress billing request shall be itemized for labor activity description, materials, and travel costs, and will be presented promptly as described in #3 above allowing adequate time for review and be in a simple format for quick evaluation by the City engineer.
The presentation of the information ahead of the end of the month shall provide the engineer adequate time to discuss progress with project team members (if needed) prior to authorizing the payment.
If progress requests are reduced at OWNER’s discretion, the City Engineer shall state the reason in writing. Contractor programming project manager shall accept the value and at the earliest opportunity discuss reasons for the reduction with the City engineer, and if the City of Atwater so desires, one or more of the Eco-Logic project team. Every attempt shall be made to resolve any such issue in a manner which continues to emphasize the partnership between the OWNER and Contractor.
Any disputed value, once justified can be added to the next month billing or disregarded as applicable.
A progress billing shall be based on a minimum of 1136th of the total not-to-exceed amount. If the progress billing is rejected or substantially reduced based on the OWNER’s dissatisfaction with the performance of the programming team for the billing period, the minimum value will serve as a minimum billing value for the period billed that was not approved. In the period between the rejection or substantial reduction of any progress billing and the next scheduled billing, the City engineer and the Contractor’s Technical Direction Group manager shall attempt to resolve the dispute. If further evaluation of contract performance is required, and resolution has not been achieved, arbitration requiring the attendance of the City’s engineer, at least one Eco-Logic Project Engineer, the Contractor’s programming project manager, and the Contractor’s Water Plant Manager shall attempt to resolve the issues. All parties shall work together to find resolution to any disputed billing and if no resolution is achieved, the City can end the Agreement.
Contractor shall provide software as the only non-labor product delivered to the project. This value will be billed on delivery and the invoice to Contractor from the software vendor shall be submitted to the City’s engineer. This value is not subject to rejection or arbitration and prior to the purchase, Contractor’s programming manager and the City Engineer shall determine the specifics of the procurement prior to commitment to the Purchase Order issuance to the vendor. All costs shall be known prior to order.
Contractor shall provide the necessary software during the programming. All services represented in this document will be provided as guaranteed minimum services as described for the City of Atwater.
General Task Description Provided in Scope of Services
1. Provide all PLC programming for PLC-1000, PLC-3000, PLC-5000, PLC-6000, PLC-7500, and PLC-8000. PLC programming provides for 434 Digital Inputs, 172 Digital Outputs, 138 Analog Inputs, and 18 Analog Outputs. All main plant PLC’s are Allen-Bradley CompactLogix PLC’s. Input and Output values are recognized as best information available and will be adjusted to meet the project requirements if part of the original Foundation Documents without impacting cost.
Provide all PLC programming for all Allen-Bradley MicroLogix PLC’s provided as part of the Adjustable Frequency Drive Configurations as well as the communication interfaces to the MicroLogix for communication to the Main Plant PLC’s and SCADA system.
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Provide all programming for all Ethernet Power Monitors Provide all SCADA development to meet the requirements of the documents listed above, as well as in Supplemental Section 16915 (see below). SCADA Graphical Development will include, but not be specifically limited to 521 Digital and 355 Analog tag objects. The approximate count was obtained from a comprehensive review and evaluation of the Foundation Documents but is recognized as an approximate and adjustments will not result in any adjustments in cost if part of the Foundation Documents.
Define and provide network configuration related specifically to SCADA systems computers, PLCs, and other network components as provided by others. This is specifically to adjust network configurations delivered by the Systems Integrator to serve the SCADA applications if necessary.
Provide, install, and configure all required application software to assure a complete and functional SCADA system which meets all requirements of the foundation documents. SCADA system software is proposed by VVWVOS herein as Rockwell Automation FactoryTalk View and associated components.
Provide all services as required in the foundation documents for participation in testing, startup, commissioning, and troubleshooting.
Provide for participation in network configuration, establishing VPN, and startup and commissioning of Ethernet based local area network if requested by the project engineers.
Provide information specifically into the graphical design with establishes the core functionality of an electronic Operations and Maintenance (O&M) manual for use by plant operators and the City of Atwater. This task is specifically provided to assist the City of Atwater in reducing final development costs for a more comprehensive electronic O&M manual as desired.
Produce information for full development of process narratives supportive of electronic O&M, operator standard operating procedures, and final project documentation.
Provide all final PLC programs with complete documentation wherein all instructions, program sections, functional subroutines, and all tags are fully documented at a level where a technician familiar with Allen-Bradley technology, but not familiar with the project could rapidly troubleshoot the system programming.
Provide a fully documented graphical application, tag database, with all relevant details on every tag completed. No tags used within the graphical development shall be allowed to have blank relevant fields.
Provide tag development for the PLC’s based on the P&ID ISA tag methodology (i.e. FIT_090301 = Flow Indicating Transmitter in Process Area 09, Unit Process 3, Instrument #1. Descriptive fields will define specifics in non-ISA language (i.e. FIT_090301=Secondary Effluent Flow Meter #1-MGD) All tasks listed above are fully qualified by complete evaluation of the Foundation Documents and all tasks are guaranteed minimum scope descriptions.
Adherence to Conformed to Addenda Specifications
Contractor was requested by the City of Atwater to propose services as the identified Application Programmer and Owner’s Representative (both terms are used in the documents) listed within the Foundation Documents, the following information identifies the applicable sections of the conformed to addenda specifications that apply to the proposed scope of services serving in that specific role to the project team.
Division 1 - Bidding and Contract Requirements
Section 01800 - Equipment and System Testing, Startup and Demonstration.
Contractor will participate as required by relevant sections of the specifications.
Section 01810 — Training
Contractor will participate in all system training where the specific services provided by Contractor are
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relevant to training not available through the engineer’s approved training for the primary provider, but is required for proper equipment operation.
Section 01820 - Operations and Maintenance Manuals
At City Request and Participation, certain areas of responsibility relevant to this section are included in this statement of services.
Division 2 — Site Work - N/A
Division 3 — Concrete — N/A
Division 4 - Masonry - N/A
Division 5 — Metals - N/A
Division 6 - Not used Division 7 - Thermal and Moisture Protection - N/A Division 8 - Doors and Windows — N/A
Division 9 — Finishes - N/A
Division 10 - Specialties - N/A
Division 11 — Equipment
Section 11060 - Electric Motors
Services include monitoring and assuring equipment settings for Motor Protection are proper and represented within certain programmable equipment components.
Section 11134 - Screenings Washer/Compactor
PLC-3101 is provided by the Original Equipment Manufacturer (OEM) and will be integrated to SCADA system by Contractor and will require interaction with the OEM provided program within the PLC and the associated PanelView Plus graphical display. Contractor will also be involved in interactive testing with the OEM representatives during their equipment startup and testing.
Section 11160 — Rotary Press Dewatering System
Although the engineering specifications did not directly reference this specific PLC system it is required to be supplied and is assumed to be in compliance Section 16910 2.03. Contractor shall coordinate with the system supplier to assure SCADA integration for the provided PLC and the associated system provider data configuration and provision of data transfer to the SCADA system. SCADA will provide the same controls as contractually required to be provided at the Local Operator Interface.
Section 11772 — Liquid Polymer Dilution and Feed System Assistance to the OEM and the contractors for the project shall be extended from Contractor’s technicians to assure analog signals are properly calibrated and that discrete control signals are properly functional for this system.
Section 11921 - Automatic Samplers
Contractor’s technicians and programmers shall assist project contractors to assure correct signals are provided for flow pacing or that flow pulse information is properly configured and available to the sampling equipment per the design intent.
Division 12 - Not used
Division 13 - Special Construction — N/A
Division 14 — Conveying Systems — N/A
Division 15 — Mechanical — N/A
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Section 15185 — Powered Valve and Gate Operators and Operator Appurtenances Contractor will participate in valve system check out and testing processes for any powered valve that is specifically controlled through an intended design automatic process where the PLC provides analog or digital control and receives analog or digital feedback to assure valve operation meets the design intent of the engineers.
Section 15431 — Emergency Eyewash and Shower Units
Testing of the critical eyewash unit operated switches shall be observed and confirmed by Contractor in coordination with the contractor to assure all SCADA functions from the PLC inputs are properly integrated into critical system alarming.
Section 15990 — HVAC Testing, Adjusting, and Balancing
Contractor shall participate in observing and coordinating with the HVAC contractor if any components of the HVAC system is provided from, or is providing to, any system PLC within the total automation system. Testing shall assure any PLC and SCADA interaction meets engineering intent and design.
Division 16 — Electrical
Section 16010 — Electrical
Subsection 1.01 A. 10. (a. and b.) Scope of Work Contractor shall perform full system testing as the designated “Applications Programmer or “OWNER’s Representative” as shown in subparagraph b. and as required by the specification after reception of the equipment required for the testing as determined by subparagraph a.
Subsection 1.01 A. 22 Scope of Work Contractor shall participate as the OWNER’s Representative in all applicable calibration, testing, and documentation as it applies to the functions of the PLC, PLC I/O, and SCADA system per the written specifications that are immediately referenced to the OWNER’s Representative as a required function, but will also, at Contractor discretion, assist project contractors and engineers where the best interests of the City of Atwater will be beneficially affected by these actions. No additional compensation of any kind is implied as a result of these discretionary actions.
Subsection 1.03 A. 3. Qualifications Contractor shall assist the Electrical Contractor and Systems Integrators at our discretion to fulfill the requirements of this section where it is specific to PLC function or SCADA integration.
Subsection 1.03 B. 2. Qualifications
As in Subsection 1.03 A. 3
Subsection 1.04 Documents
Contractor recognizes that there are no existing final documents for each unit process or unit process control that is to be explicitly followed. Contractor accepts as a responsibility to leverage the operational expertise demonstrated by the performance of a multiple year contract as the OWNER’s operational contractor to provide documentation on each unit process in conjunction with the engineering draft documents (see Supplemental 16915 Application Programming General Requirements) to complete each unit process descriptive narrative suitable for incorporation into sections of Standard Operating Procedures and to support eventual development of the OWNER’s electronic O&M Manual.
Subsection 1.05 E. 2. Utility Coordination and Fees
Contractor can assist contractors in establishing and managing VPN and network communications at owner’s discretion, or if requested by the project engineers and management as part of the project team.
Contractor shall not deem simple assistance to be outside the stated services scope, unless the City of Atwater requests that Contractor accept the specifics of this section as a scoped responsibility for any reason. Should this occur Contractor shall negotiate fair compensation if it can be reasonably shown to be justified by evaluation by the City of Atwater or their authorized representative.
Note: this is only offered as an alternative should 1.05 F. become applicable.
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Subsection 1.06 B. 3. Project Coordination
Contractor shall attend this meeting for coordination. However, it is noted that there has been a delay in execution of a contract placing Contractor as the City’s Application Programmer (see Supplemental 16915) which could make this task irrelevant if the meeting has already taken place.
Subsection 1.06 C. 4. a., c., and d. Project Coordination Contractor will require approved copies of the documents in this section as noted. Contractor shall provide feedback to the Systems Integrator if there are errors or other conditions which are prohibitive to 100% compliance between the drawings and the configured PLC systems.
Subsection 2.04 B. 5. Indicating Lights
Contractor will use the indicated color scheme as the colors for indicator graphics in all SCADA graphical development.
Supplemental Requirements to Section 16010
Contractor requires copies of all approved submittals on Adjustable Frequency Drives, Electronic SoftStarters, Intelligent Motor Control Devices, and all Power Monitor Devices as soon as possible.
Section 16121 — Data Network Systems
Contractor accepts responsibility for integration of any backbone diagnostic OPC capable software capable of interpreting and displaying the status of the network into the SCADA system graphics.
Graphical development of this system is not a requirement of the stated services ,scope, but shall be provided at Contractor design discretion. It shall be provided, but Contractor shall determine the scope, the presentation, and the limit to this task.
Contractor shall also assist the contractors and project team in assuring the total completion of the network system is adequately installed to provide expected functions for PLC and SCADA communications, but shall not be responsible for this system as it is not within the stated services scope.
Contractor recognizes our position as a team member for this project and will assist as it benefits the total project schedule.
Sections 16210 and Section 16250 — Generator and Automatic Transfer Switch Contractor shall assist, coordinate with, and participate in full system testing after the system is determined to be ready for final testing. Testing shall confirm all PLC I/O, SCADA representation, and ATS and generator control functions, but Contractor shall only be responsible for the accuracy of the receiving PLC data presented through the SCADA graphical development to assure complete accuracy of that representation and critical alarm and status functions. Contractor shall accept no responsibility for the operation of the Legally Required Standby system as a function of this stated scope of services.
Section 16481 — Adjustable Frequency Drives
Contractor accepts all programming responsibility as is required to assure that the Adjustable Frequency Drives (AFD) are integrated to their local ML1100 Allen-Bradley PLC by creation of all logic as required, and assuring that the communication through Ethernet to the CompactLogix parent PLC is complete, and provides all functions as shown in the drawings and specifications. Contractor shall not be responsible for the AFD programming and performance testing of the AFD and the driven equipment. If the accepted AFD is not Allen-Bradley, or the selected and approved AFD’s are not natively able to communicate with the Allen-Bradley PLC’s, the manufacturer’s representative shall provide all technical information as required to coordinate their register information with the Allen-Bradley PLC and SCADA systems. Contractor shall coordinate with the technician provided under Subsection 3.02, and accept complete responsibility for the PLC programming, but the manufacturer must provide adequate technical resources to the project to complete the required interface. Contractor requests the right to recommend non-acceptance of the AFD supplied if technical resources are note provided with adequate skill to assure complete compliance with the design specification.
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Section 16600 — Factory and Field Testing
Contractor shall comply with all requirements of this section specifically relevant to the identified “Application Programmer” or “OWNER’s Representative”. The project supervising engineer or the OWNER’s designated project engineer shall determine compliant actions and performance and Contractor shall accept these determinations.
Special Note #1: Contractor requests the right to observe and attend the factory testing required in this section for the Systems Integrator under Subsection 3.01 A. and specific to A. 11. Contractor shall not request nor expect the Systems Integrator to be financially responsible for Contractor as shown in 3.01 A.
12. as Contractor attendance will be at Contractor’s discretion.
Special Note #2: Contractor has responded previously with numerous suggestions on the field testing which is highly redundant for the System Integrator as the specification language is not specific enough to clarify testing that is at the PLC functional level and not at the application level. To facilitate organization, Contractor is expecting that the Systems Integrator shall perform all testing prior to transfer of the equipment to Contractor to assure that all I/O is correct to the field interface panel terminals, that each module, point, channel, or peripheral device (such as a relay) are 100% functional and accurate to approved submitted shop drawings. Configuration programming required to establish each module shall be expected to be still available in the PLC’s after custodial transfer. However, it is expected that no actual logic shall be developed by the Systems Integrator as a requirement of the testing and that the factory testing by the Systems Integrator is not to simulate any active plant process, but to specifically determine the accuracy of the panel construction, and to assure communication to the PLC is as expected based on submittal drawings. Additional failure and communication testing is accepted as shown in this section.
Section 16915 — PLC Application Programming
Contractor accepts, without exception or comment, this section in its entirety.
Section 16915 - Supplemental Programming (see comments above) Section 16920 - SCADA System Hardware
Contractor accepts, without exception or comment, this section in its entirety.
Section 16925 - SCADA System Application Programming
Contractor accepts, without exception or comment, this section in its entirety.
Section 16940 — Instrumentation
Contractor recognizes that the engineered specification assigns no responsibility to the Applications Programmer or OWNER’s Representative for the instrumentation within this section, but Contractor shall provide assistance wherever possible to leverage Contractor experience in instrumentation systems as it is deemed beneficial to the project. Contractor offers our capability to system checkout involving field instrumentation to assist the total project team, but defers to the project engineers to determine if any assistance is needed.
83744.00003\41155333.3
ATTACHMENT G
INSURANCE REQUIREMENTS
Before beginning any work under this Agreement, Contractor, at its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Contractor and its agents, representatives, employees, and subcontractors. Contractor shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Contractor shall maintain the insurance policies required by this section throughout the term of this Agreement.
Contractor shall not allow any subcontractor to commence work on any subcontract until Contractor has obtained all insurance required herein for the subcontractor(s) Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Contractor shall maintain all required insurance listed herein for the duration of this Agreement.
1. Workers’ Compensation. Contractor shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Contractor. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with bodily injury limits of not less than ONE MILLION DOLLARS ($1,000,000.00) on a per accident and by disease basis. In the alternative, Contractor may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the OWNER’s Contract Administrator. The insurer, if insurance is provided, or the Contractor, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement, and such waiver of subrogation shall be so stated on Insurance Services Office (“ISO”) endorsement form CG 24 04.
An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Contractor shall notify City within ten (10) days of notification from Contractor’s insurer if such coverage is suspended, voided or reduced in coverage or in limits.
83744.00003\41155333.3
The requirement to maintain Statutory Worker’s Compensation and Employer’s Liability Insurance may be waived by the City upon written verification that Contractor does not have any employees.
2. Commercial General and Automobile Liability Insurance.
2.1 General requirements. Contractor, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than TWO MILLION
DOLLARS ($2,000,000.00) and automobile liability insurance for the term of this Agreement in an amount not less than TWO MILLION DOLLARS ($2,000,000.00). The commercial general liability and automobile liability insurance shall be per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a commercial general liability insurance or an automobile liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non- owned automobiles.
2.2 Minimum scope of coverage. Commercial general liability coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition), Code 1 (any auto). No endorsement shall be attached limiting the coverage.
2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an
endorsement to the policy:
a. City of Atwater and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Contractor,; products and completed operations of Contractor; premises owned,
83744.00003\41155333.3
occupied, or used by Contractor; and automobiles owned, leased, or used by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City of Atwater or its officers, employees, agents, or
volunteers.
b. The City of Atwater shall be listed and named as an
additional insured on Insurance Service Office (“ISO”)
endorsement form CG 20 10 11 85 if commercially
available, or CG 20 10 (all other editions other than 11 85), as follows: “The City of Atwater, its elected officials, officers, agents, and employees”.
c. The Certificate of Insurance must list the “City of Atwater listed as ADDITIONAL INSURED” in the field entitled
“Description of Operations”:
d. The Certificate of Insurance must list the “City of
Atwater” in the field entitled “Certificate Holder”:
e. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
f. An endorsement must state that coverage is primary
insurance with respect to the City of Atwater and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City of Atwater shall be called upon to contribute to a loss under the coverage. g. Any failure of Contractor to comply with reporting
provisions of the policy shall not affect coverage provided to the City of Atwater and its officers, employees, agents, and volunteers.
h. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Contractor shall notify City within fourteen (14) days of notification from Contractor’s insurer if such
coverage is suspended, voided or reduced in coverage or in limits.
83744.00003\41155333.3
3. All Policies Requirements.
3.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII.
3.2 Verification of coverage. Prior to beginning any work under this Agreement, Contractor shall furnish the City of Atwater with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City of Atwater reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.3 Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for
subcontractors shall be subject to all of the requirements stated herein.
3.4 Deductibles and Self-Insured Retentions. Contractor shall disclose to and obtain the approval of the City of Atwater for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written authorization of OWNER’s Contract Administrator, Contractor may increase such deductibles or self-insured retentions with respect to the City of Atwater, its officers, employees, agents, and volunteers. The OWNER’s Contract Administrator may
condition approval of an increase in deductible or self-insured retention levels with a requirement that Contractor procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
3.5 Waiver of Subrogration. Contractor hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver
83744.00003\41155333.3
of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Contractor, its employees, agents, and subcontractors.
3.6 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Contractor shall provide written notice to the City of Atwater at Contractor’s earliest possible opportunity and in no case later than five (5) days after Contractor is notified of the change in coverage.
4. Remedies. In addition to any other remedies the City of Atwater may have if Contractor fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, the City of Atwater may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Contractor’s breach:
▪ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
▪ Order Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or
▪ Terminate this Agreement.
CITY COUNCIL
AGENDA REPORT
MEETING
DATE:
April 24, 2023
TO: Mayor and City Council
FROM: Michael Salvador, Police Chief
PREPARED
BY:
Michael Salvador, Police Chief
SUBJECT: Approving specifications and authorizing advertising of a Request for Proposal for the acquisition of a Public Safety Radio Communications System for the Police Department (Police Chief Salvador)
RECOMMENDED COUNCIL ACTION
Motion to approve specifications and authorize the advertisement of a Request for Proposal for the acquisition of a dedicated Public Safety Radio Communications System for the Police Department; or
Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
The City currently has an outside vendor for public safety radio services via contract with the Merced County Sheriff’s Office. During the 22-23 winter storms event, this system was disabled by weather, causing lapses in service for long periods of time.
During these events, the Police Department was required to use mutual aid channels that were not designed to be used for long term events or provide adequate coverage.
In response to the communications issues that were caused, the City seeks to issue a Request for Proposal "RFP" to design, acquire and install a new channel 800 MHz Project-25 conventional radio system that will replace the existing trunked radio system that is currently being utilized by Law Enforcement. This system will leverage the investments in radio equipment already made by the City over the past 4 years and provide an independent infrastructure that will improve coverage and reliability. This system will be interoperable with the legacy system and could be used as a supplemental communications link for allied agencies in the immediate area. The proposed system will increase communications capacity and allow for the department to respond and handle multiple events simultaneously. This system will also be available to other city departments in the event that their primary communications networks are disabled.
CITY COUNCIL
Mike Nelson, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
Agenda Report - Page 2
Staff is seeking authorization to issue the RFP attached with the goal of determining the feasibility of the acquisition of a public safety radio communications system.
II. FISCAL IMPACTS:
The fiscal impacts of this RFP are yet to be determined. Staff will return to the Council with a funding recommendation and a request to award a contact after RFP review.
Applicable funding sources are:
1. General Fund
2. Public Safety Transactions and Use tax
3. Community Facilities Districts
This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
This item has been reviewed by the City Attorney's office.
IV. EXISTING POLICY:
This item is consistent with goal numbers one (1) and two (2) of the City's Strategic Plan: to ensure the City's continued financial stability and to improve public safety, respectively. This item is consistent with the Police Department's Strategic Plan adopted on April 8th, 2019.
V. ALTERNATIVES:
N/A
VI. INTERDEPARTMENTAL COORDINATION:
The Department will coordinate with the City Clerk's Office to insure proper distribution and notice of the RFP.
VII. PUBLIC PARTICIPATION:
The public will have the opportunity to comment prior to City Council action.
VIII. ENVIRONMENTAL REVIEW:
This item is not a “project” under the California Environmental Quality Act (CEQA) as this activity does not cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to Public Resources Code section 21065.
IX. STEPS FOLLOWING APPROVAL:
Upon City Council approval, staff will coordinate the issuance and management of the RFP.
Submitted by:
Agenda Report - Page 3
Michael Salvador, Police Chief
Approved by:
Lori Waterman, City Manager
Attachments:
1. RFP- Public Safety Radio Communications conventional radio system
City of Atwater
Request for Proposals for
800 MHZ Project 25 Phase-I
Public Safety Conventional Radio System
Date Released: May 01, 2023
Proposals due prior to: 2:00 pm on June 22, 2023
Submit Proposals to: City of Atwater
Attn: Janell Martin, Deputy City Clerk
1160 Fifth Street
Atwater, CA 95301
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
TABLE OF CONTENTS
I. INTRODUCTION ......................................................................................................2 II. GENERAL INFORMATION AND SCHEDULE .........................................................3 III. PROJECT OVERVIEW.............................................................................................5 IV. GENERAL REQUIREMENTS.................................................................................12 V. STATEMENT OF QUALIFICATIONS REQUIREMENTS .......................................13 VI. EVALUATION AND CRITERIA...............................................................................15 ATTACHMENT A – SAMPLE CONTRACT AGREEMENT……………………....16
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
NOTICE REQUESTING PROPOSALS (RFP) FOR
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
NOTICE IS HEREBY GIVEN that the City of Atwater, California, will receive sealed proposals from qualified Consultants at the Office of the City Clerk at Atwater City Hall, 1160 Fifth Street, Atwater, California 95301 until 2:00 P.M. on Thursday, June 22, 2023.
The services to be performed by the successful Consultant are described in this Request for Proposal under “ Scope of Services”. Request for Proposal documents may be obtained from the City’s website at www.atwater.org or by contacting Michael Salvador, Police Chief, at (209)357-6298 or [email protected].
Proposals shall be sealed, and clearly marked “Requests for Proposals- 800 MHz Project 25 Phase I Public Safety Conventional Radio System.” All responsive proposals shall be reviewed and evaluated by the City in order to determine which Consultant best meets the City’s needs for this project by demonstrating the competence and qualifications necessary for the satisfactory performance of the required services. The criteria by which the City shall evaluate proposals are set forth on this Request for Proposal.
The City of Atwater reserves the right to reject any or all proposals, to delete portions of any and all proposals, to waive any informality or irregularity in any proposal received or in the RFP procedures, and to be the sole judge of the merits of the qualifications received. Be advised that unauthorized conditions, limitations, or provisions attached to the Proposal may render it unresponsive and may cause its rejection. Oral, telegraphic, or telephonic proposals or modifications will not be considered. The award, if made, will be made to the most qualified Consultant based on the criteria set forth in the RFP documents.
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
1. INTRODUCTION
1.1 OBJECTIVE
The City of Atwater (City), through the Police Department is requesting proposals (RFP) from interested and qualified Consultants to assist the City in the design, preparation, and installation of a 800 MHz Project Phase I Public Safety Conventional radio System.
The City currently has an outside vendor for public safety radio services via a contract with the Merced County Sheriff's Office. The City is seeking to acquire and implement a new four (4) channel 800 MHz Project 25 conventional radio system that will replace the existing trunked radio system that is currently being utilized by Law Enforcement.
The system shall guarantee portable in street radio coverage reliability within the jurisdictional boundaries of the City.
The proposed system upgrade design shall comply with APCO minimum recommendations for Project 25 Phase 1 Digital Voice Public Safety 800 MHz conventional radio systems. The proposed system shall be backward-compatible with current subscriber equipment.
1.2 BACKGROUND
Atwater is a growing city located in the heart of the San Joaquin Valley. A City that encompasses approximately 6.57 squares miles in between two arterial traffic corridors, Hwy 99 and Santa Fe Avenue in Merced County. The population of over 30,000 is comprised of a mix of cultural and diverse ethnic backgrounds.
As Atwater continues to grow the new system is intended to support the City well into the future. System size, capacity, functionality, and flexibility must be sufficient to support the City’s growth and changing needs, as well as the possibility of other agencies participating in the system. The design approach shall have the flexibility to accommodate additional users, which may enter the system at a later date.
The new system will be installed while the current systems are still in place and operating. This provides the ability for both the current and the new systems to work together during the implementation phases. The existing system infrastructure shall continue to interface and be operational from the dispatch center. A training period will follow the installation period, where the dispatchers and radio users are to become familiar with the new system’s operations prior to system cutover. Technical training for city technical staff shall also be provided.
The City’s current subscriber radio equipment consists of, but is not limited to the following:
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
1. Motorola APX 6000 mobile radios
2. Motorola APX 4500 mobile radios
3. Motorola APX 8500 mobile radios
4. Motorola APX 4000 portable radios
5. Motorola APX 8000 Portable radios
6. Rack Mounted Motorola APX 6000 radios
7. Motorola MIP 5000 Dispatch Consoles
1.3 RFP ORGANIZATION
This RFP consists of six Sections and three Attachments:
• Section 1: Background
• Section 2: Project Overview
• Section 3: Procurement Process
• Section 4: RFP Submission Requirements
• Section 5: RFP Evaluation and Selection
• Section 6: Conditions for Respondents
• Attachment A: Definition of Terms
• Attachment B: Insurance Requirements
• Attachment C Draft Professional Services Agreement
2. GENERAL INFORMATION AND SCHEDULE
2.1 General
Addenda to this RFP, if issued, will be posted on the City of Atwater website at:
http://www.atwater.org/index.html
All interested firms are required to submit a proposal in accordance with the conditions and dates outlined in this Request for Proposals (RFP).
All questions or inquiries regarding this RFP or the selection process are to be addressed, in writing only, (e-mail is acceptable) by 2:00 PM on June 1, 2023 to:
Michael Salvador, Chief of Police
City of Atwater
Police Department
750 Bellevue Road
Atwater, CA 95301 or
Email: [email protected]
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
Questions received after this time will not be answered. Questions and responses will be posted on the website. It will be the submitter’s responsibility to periodically review the website for responses to questions and to review any additional information that may be provided by the City.
2.2Submission
Proposals are to be clear, concise, and responsive to the information requested. The proposal may not exceed twenty (20) physical pages total (8-1/2” x 11”), regardless of double-sided or single sided print. Minimum font size of 12 required. The page limit does not apply to any forms required under this RFP. Each page should be numbered.
Proposals submitted shall include: Five (5) bound copies and one (1) electronic copy via CD or flash drive, 1 copy of the fee rates (sealed separately).
Proposals submitted shall include: one (1) electronic copy (via email) of their proposal.
The proposal shall not exceed 15 MB and should be labeled with the consultant’s name in the file name. Submit one (1) copy of the fee schedule as a separate attachment.
Proposals will be accepted until 2:00 pm on June 22, 2023. Proposals received after the deadline will be automatically rejected. Proposals will be received only at the address shown below and must be received by the time listed here.
City of Atwater
Attn: Janell Martin, Deputy City Clerk
1160 5th Street
Atwater, CA 95301
All cost for preparation of the submittals shall be borne by the applicant, and submittals received shall become the property of the City, whether accepted or rejected. Incomplete submittals may be rejected as non-responsive. The City of Atwater reserves the right to reject any or all proposals submitted and the City reserves the right to waive any irregularities in the proposals.
All proposals and any other materials submitted and accepted in response to this RFP will become property of the City of Atwater and will not be returned to the proposer.
2.3 Schedule
The City’s tentative schedule for the RFP process is as follows, subject to change, depending on the needs of the City.
• Issuance of RFP: May 1, 2023
• Site Tour May 22, 2023 at 9:00 AM
• Last day for Request for Information: June 1, 2023 by 2:00 PM
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
• Responses to RFIs June 8, 2023 by 5:00 PM
• Deadline for submittal of RFP: June 22, 2023 by 2:00 PM • RFP review and evaluation: June 26-30,2023
• Cost Negotiation: July 10-14, 2023
• Award contract: August 14, 2023
3 PROJECT OVERVIEW
3.1 PROJECT SCOPE
The City of Atwater seeks a system design that will:
• Provide 99.995% system availability.
• Upgrade overall citywide in-building and portable coverage • Licenses 4 800 MHz frequencies for repeated and simplex operations. • Implementation of regional Interoperability channels [ICALL, 8TAC, calaw8, XMD]
• Use existing Communications Dispatch Console equipment. • Use existing logging recorder.
• Use new radio sites for coverage.
• Work with the City of Atwater IT Department for site connectivity.
Suppliers are cautioned that throughout the implementation of this project, existing operations cannot be disrupted. The dispatch consoles at the current center shall remain fully operational during the installation.
The City of Atwater has determined that competition in the procurement of subscriber equipment in the future is of importance to its operations. While the City of Atwater understands that the base station and interconnecting infrastructure comprising the initial system may contain certain unique and proprietary technologies, the future addition of subscriber units must be open to competition from multiple P25 manufacturers.
Supplier shall name in their proposal other manufacturers who have obtained the necessary technology licenses and who are manufacturing, or have proposed the manufacture of, compatible subscriber equipment. Mobile radios, portable radios, radio modems, control stations and conventional base stations are of interest to the City of Atwater.
It is the intent of the City of Atwater is to procure a fully functional system in accordance with the technical specifications.
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
The Proposer shall demonstrate a minimum system availability of 99.995%, and describe their method or combination of hardware/software to meet the system upgrade availability factor.
The system design must comply with APCO minimum recommendations for Project-25 Phase I conventional radio systems including, but not necessarily limited to, the following operational and functional characteristics:
o 2 Conventional repeated pair channels; 4 additional simplex channels. o Automatic Unit Identification
o Call Privacy
o System Management Capabilities
o Lost/Stolen Radio Inhibit
o Encrypted voice operation.
o Interoperability with outside conventional/trunked radio networks o Direct interconnectivity with other Project-25 compliant network solutions
RADIO COVERAGE REQUIREMENTS
It is the intent of the City of Atwater to acquire and install a 4-channel 800 MHz Phase 1 P-25 Conventional Radio System in support of City of Atwater’s public safety and public service agencies. The system shall guarantee portable in-building radio coverage reliability within the jurisdictional boundaries of the City of Atwater.
If the system supplied fails to meet the radio coverage reliability specified herein, any and all additions, changes, modifications, improvements, enhancements, etc., to the configuration of the 800 MHz radio infrastructure in order to meet the stated radio coverage requirement, shall be the responsibility of the Supplier at their expense.
Radio Coverage Design
The coverage design shall be evaluated on the success in providing coverage in as many buildings as possible. It is the City of Atwater’s desire to procure a new radio system infrastructure that has been designed efficiently and cost-effectively to provide high level in-building coverage.
Coverage design shall be in-Street coverage for an on-hip Portable. The Supplier is required to discuss in their proposal the level of expected coverage for 8 dB buildings, as well as 20 dB buildings.
Coverage design and performance testing shall comply with the most current version of TIA/EIA-TSB-88, although this RFP may specify minor variations to this standard.
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
The proposed P25 system shall provide in-building coverage to a minimum audio quality of DAQ 3.4 as defined in TSB-88 1241 throughout 95% City of Atwater’s coverage area.
References to coverage reliability in this document refer to area reliability. For example, 95% coverage is defined as the total service area of City of Atwater segmented into test tiles, a minimum of 95% of the test tiles will yield a DAQ of at least a 3.4 per TSB-88.
City of Atwater reserves the right to have the Supplier’s revise their coverage predictions as required to determine the effectiveness of their design and to review alternative site parameters. The radio coverage design shall consider the current noise floor environment as well as predictable system degradations for the future. The portable handheld radio configuration for coverage design is a portable radio with a “belt clip” worn at the hip level using a standard lapel speaker-microphone.
RF Coverage Method
Suppliers shall provide radio system coverage predictions using a radio wave propagation model that has been developed from theoretical and empirical data, and shall take into account terrain irregularity, foliage, urban clutter, building penetration losses, noise, and long and short-term signal variations.
Suppliers shall provide a table of system parameters used listing all values of system gains, system losses, and signal strength assumptions, as well as site data.
Building Predicted Signal LevelMaximum
Building Loss
+/- Signal
Margin
Building-1 xx dBm 20 dB xx dBm
Building-2 xx dBm 20 dB xx dBm
Defined Coverage Area
The defined coverage area is the borders of the City of Atwater and a 20 mile radius circle centering at the Atwater Water Tower. For each coverage map provided, coverage prediction shall not stop at these borders. An understanding of the extent of coverage outside this boundary is required for mutual aid purposes. Note that the radio coverage that extends outside of the defined boundaries will not be included in the Radio Coverage Acceptance testing.
Note that based on the transmitter sites provided, the City of Atwater borders may not meet the 95% reliability specification. Coverage locations where coverage does not meet the design coverage criteria should be clearly marked. The contractor shall guarantee coverage within their coverage “painted area” area within the city’s borders.
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
Current FCC License Parameters
The City’s Current VHF FCC authorization allows an ERP of 100 watts at the existing transmitter sites. Suppliers have the option to select higher [or lower] ERPs should their coverage design necessitate changes in ERP levels.
Furthermore, any antenna configuration [omni, downtilt, directional, etc.] is encouraged to provide the required coverage can also be employed. Suppliers are required to fully understand all of the current issues involving the NAPCO Regional Planning Committees coordination requirements regional frequency plans that contain rules effecting RF coverage in the areas of frequency allocation, channel spacing, channel bandwidth, etc. shall be incorporated as part of the RF coverage predictions.
If the supplier proposes higher ERP levels to achieve their coverage objectives, they will be required to apply for the appropriate FCC licenses and provide contours in their proposals.
Critical Buildings
In-building portable radio coverage is necessary for the buildings found in Appendix-A Critical Buildings List. These are defined as “Critical” buildings. Proposers are expected to evaluate each building to determine whether the building is provided with the required design coverage reliability solely by the radio infrastructure.
Proposers shall submit a predictive performance analysis table in their proposal to estimate the level of coverage that may be present in each of these buildings. Statistical tile analysis shall determine signal levels in and around the proposed building.
The proposers will be evaluated on their review and analysis on their “Critical” building proposal response. The evaluation table should be similar to the follow format:
Building Predicted Signal LevelMaximum
Building Loss
+/- Signal
Margin
Building-1 xx dBm 20 dB xx dBm
Building-2 xx dBm 20 dB xx dBm
Moreover, based on the building coverage prediction, and the type of building, the Proposer shall evaluate and recommend the most cost-effective solution to provide coverage inside the critical building. The building test will be conducted by the contractor.
RF Coverage Predictions Submittals
System/Equipment Parameters Table: Suppliers shall provide a complete listing of all sites, component, and system parameters used to calculate and generate the predicted
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
RF coverage. Suppliers shall also state the RF coverage prediction model utilized. If multiple models are used to generate a composite prediction, then a detailed explanation shall also be included.
Prediction Maps: Suppliers shall provide prediction maps indicating a single reliability of 95% RF coverage. Prediction maps shall indicate City of Atwater borders including adjacent cities, RF base site locations, and areas of non-coverage. The prediction maps shall also indicate the level of coverage anticipated outside the jurisdictional boundaries of the City of Atwater.
CITY OF ATWATER desires a graphical representation of the areas that fall below 95% RF coverage to be indicated on the coverage prediction maps. The areas that are above 95% of RF coverage shall not be “marked” on the coverage prediction maps. The following coverage maps shall be provided in the proposal. All maps shall depict worstcase scenario [talkout versus talkback].
Map-1: Mobile coverage for P25 Phase-I
Map-2: Mobile coverage for P25 Phase-I with receive diversity Map-3: Portable In-Street coverage for P25 Phase-I
Map-4: Portable In-Street coverage for P25 Phase-I with receive diversity Map-5: Portable inside 8 dB Building for P25 Phase-I: marked as green Portable inside 20 dB Building for P25 Phase-I: marked as yellow Map-6: Portable inside 8 dB Building for P25 Phase-I with receive diversity: marked as green.
Portable inside 20 dB Building for P25 Phase-II with receive diversity: marked as yellow
The coverage maps provided shall also display time-delay interference [TDI] that may occur if the TDI falls within the proposed coverage footprint. Predicted areas of TDI shall be clearly shown on the coverage maps in red. A separate TDI map shall be provided that shows areas with potential TDI in red.
TRANSMITTER SITE
The City of Atwater intends to leverage the City Water Tower located at Latitude 37.20’
47.92 N and Longitude 120.36’19.09 W as the Prime Site, RF repeater site. In bidding the equipment for this site the bidder shall include a bid for emergency power for the site to ensure system reliability. The bidder shall also examine design and bid connectivity back to the control station at Atwater PD.
Antenna Systems
Request for Proposals
800 MHz Project 25 Phase I
Public Safety Conventional Radio System
The 800 MHz antenna system design shall be specified by the Supplier to provide for balanced ‘TALKOUT’ & ‘TALKBACK’ communications only. Separate antennas shall be used for transmit and receive.
The Suppliers have the option to select any antenna or configuration to reduce the potential for intermodulation or receiver desensitization, and to provide the required coverage within the restraints of the FCC license.
The antenna systems shall be provided with all necessary lightning and power surge protection devices. Supplier shall state the manufacturer and model number of the antenna(s) being proposed at each site.
The Supplier is encouraged to utilize directional and/or downtilt antennas to maximize coverage performance in their coverage design.
Transmission Line & Accessories
The successful Supplier shall supply high quality transmission lines for all RF applications. Supplier shall state the size and type of transmission line being proposed at each site. RF sensors shall also be provided for each transmission line provided and monitored by the alarm system. RF connectors provided shall be fully compatible with directly associated equipment or jumpers in the system. Connectors must be of nonferrous construction. No splices or adapters shall be used under any circumstance.
However, it is permissible to utilize different connectors on opposite ends of a cable to avoid the use of adapters. When transforming from one diameter cable to another, it is acceptable to use flange reducers, so long as the cable V.S.W.R. 1135 specification is not changed.
Transmitter Combiner
The Supplier shall propose for the main radio site a transmitter combiner. The Supplier shall state the manufacturer and model number of the transmitter combiner at the site.
Receiver Multicoupler and Pre-Amplifier
The Supplier shall propose a receiver Multicoupler and Tower-top-amplifier. The Supplier shall state the manufacturer and model number of the receiver multicoupler system being proposed at the site.
The Supplier shall propose equipment that utilizes low noise tower top mounted amplifiers, if needed, to provide for a balanced system. Redundant amplifiers and window filters shall be used in the tower-mounted assembly. The Supplier shall state the manufacturer and model number of the tower top amplifier system being proposed at the site.
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Automatic switchover to the standby amplifier shall be provided, and the means to accomplish the switchover shall be described in the proposal. Indication of primary amplifier failure shall be provided via the site alarm system(s). Manual switchover shall also be provided at the control panel, with indication of the amplifier in use.
Primary and Backup Power
All equipment will operate with -48vdc backup power. Electrical panels at the transmitter site shall have capacity to add additional circuit breakers for the new equipment.
However, it is the Proposer’s responsibility to confirm capacity and requirements during the Site Visit. Each electronic equipment shall have a dedicated circuit and breaker.
This may be accomplished by using/installing new breakers in a panel, or providing a rack mounted power/breaker distribution panel with surge protection, fed by two [2] separate circuits.
The Contractor shall provide Battery - Rectifier/Charger power system for all equipment at the site. The Proposer shall submit in their proposal the calculations in determining battery loads, including RF equipment duty cycles. The installation shall be equipped with a source of backup power that will provide the Backhaul Radio with operating power for a period of not less than 4-hours at full load. The backup power system shall be enclosed in an environmental cabinet of modular design that shall comply with the same requirement as the radio equipment.
▪ -48v DC Battery
▪ Charger/Rectifier shall include low voltage battery disconnect/low voltage load disconnect features
▪ Must support SNMP management
▪ Major and Minor alarm contacts.
▪ The backup power system shall be activated upon loss of commercial power and shall be recharged by the on-site generator when active; the charger system should always float the batteries and equalize per battery requirements.
Emergency Power Generator
The site requires a Minimum CARB Tier 4 liquid propane gas 25 kW emergency power generator in a weatherproof enclosure, and mounted outside on a suitable concrete foundation pad. The pad shall be at least 6 inches above finished grade and adjacent to the equipment shelter. Emergency power shall consist of a generator, automatic transfer switch, to be mounted inside the equipment shelter, and all associated equipment and accessories. The City will be responsible for the permitting of the generator through the San Joaquin Valley Air Pollution Control District if necessary.
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Liquid Propane Gas [LPG] Tank
The Vendor shall furnish and install the LPG tank, foundation, and all necessary piping and wiring. The Liquid Propane Gas storage tank shall be installed above ground and shall be sized to provide one hundred twenty [120] hours operation at full rated load.
Electromagnetic Interference
Shielding and filtering shall be provided to prevent interference from, or to, other radio frequency equipment installed near or in the vicinity of the proposed equipment. The equipment shall meet or exceed spurious frequency emissions, conducted, or radiated, as outlined in Part 15 of the FCC Rules and Regulations. Equipment shall be operationally compatible with the following types of equipment located at the site:
• IP/Ethernet equipment
• Ethernet switches & routers
• RF Transmitters & Receivers
• DC Power System
4. GENERAL REQUIREMENTS
The Consultant’s personnel shall be capable, competent, and experienced in performing the types of work in this Contract with minimal instruction. Personnel skill level should match the specific job classifications, as set forth herein or in the Consultant’s Cost Proposal and task complexity.
The Consultant’s personnel shall be knowledgeable about, and comply with, all applicable Federal, State, and Local laws and regulations.
The Consultant is required to submit a written request and obtain the City’s Contract Administrator’s prior written approval for any substitutions, additions, alterations, or modifications to the consultant’s originally proposed personnel and project organization, as depicted on the proposed consultant’s organization chart or the consultant’s cost proposals. The substitute personnel shall have the same job classification as set forth herein or in the consultant’s cost proposal not exceed the billing rate and meet or exceed the qualifications and experience level of the previously assigned personnel, at no additional cost to the City.
Unless otherwise specified, the consultant shall provide all materials and equipment to complete the required scope of work.
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Site Tour
For Proposers to determine their scope of work, a site tour will be conducted. The purpose of the Site Tour is for each potential proposer to gather information on conditions that will assist in the accurate preparation of costs for installation labor and services, equipment, materials, and site improvements. The Atwater Police Department will escort proposers to the proposed site, but proposers must have their own transportation. Please only send two people from your company for the site tour.
The Proposer shall review site/tower conditions, inspect the site facilities to determine equipment rack space requirements as well as antenna space or requirements at the proposed sites.
Electrical service at each site should be evaluated by the proposer to determine its suitability to power the proposed equipment. Any electrical modifications required shall be identified by the proposer and submitted in its proposal.
The Proposer shall inspect grounding conditions, lightning protection devices, and other site facilities to determine if suitable for the proposed equipment.
Environmental controls at the sites should be assessed by the proposer for their ability to maintain the proposed equipment within its specified operating parameters as needed by the proposer’s equipment.
Note that this is the only opportunity prospective Proposers will have to visit and inspect the City of Atwater’s communications facilities. Therefore, attendance is mandatory for prospective Vendors interested in submitting a response.
5. STATEMENT OF QUALIFICATIONS REQUIREMENTS
The City is seeking qualified consultants that demonstrate extensive knowledge and experience in dealing with municipalities and scope of services listed in this RFP. To be considered, all submittals shall be responsive to the RFP and must contain the following:
1. Cover letter: Shall be addressed to Michael Salvador, Chief of Police and must at a minimum, contain the following information:
a) Brief summary of Consultant’s profile, qualifications and capabilities which specifically addresses the organization’s knowledge and experience under this RFP.
b) Proposed subconsultants (if applicable)
c) Proposed Consultant’s phone number and email address
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d) Acknowledgement of receipt of all addenda (if applicable) e) A statement attesting that all information submitted with the RFP is true and correct
f) Signature of the official authorized to negotiate and contractually bind the firm with the City should an award of contract occurs.
2. Qualifications and Experience: The Consultant shall summarize the qualifications and relevant experience for the consultant firm, proposed any subconsultants. The following items should be included:
a) Project Team – Identify the contact person with primary responsibility for this project, other key project personnel, including sub-consultants, and their individual areas of responsibility. Key personnel listed will be considered as committed to the project. A resume of all key personnel assigned to the project, including sub-consultants, shall be submitted.
b) Relevant Project Experience - Describe the team’s experience in providing services as shown in the “Scope of Work” section above. Provide five (5) relevant projects in the past three (3) years specifically related to the scope of work. For each listed experience, provide client name, contact person, and current phone number and e-mail address. Reference projects should include a brief description of what the Consultant’s firm/project manager provided on the project.
3. Project Understanding and Approach: Include a brief narrative description of the general approach the consultant would use to provide the requested services.
The narrative must include the consultant’s overall strategy for scheduling work, a schedule of milestones for meeting project deadlines, a description of quality control measures, and approach to working as part of a team with City staff.
4. References: Provide two or more references from municipal agencies that can supply information on the quality of your services during the past two (2) years.
5. Conflict of Interest Statement: Provide a statement of any recent, current or anticipated contractual obligations that relate to similar work within the City of Atwater which may have a potential to conflict with the Consultant’s work on future on-call tasks with the City.
6. Contract and Insurance Documentation: The City’s standard contract for professional services is attached for review – See Attachment A. The City requires that the consultant provide and maintain policies of insurance according to the contract. If upon review, the Consultant has concerns with the standard contract, they may submit a red-lined copy indicating their concerns within their proposal.
The City shall review any requested changes and if deemed appropriate, will approve the requested changes. If the City does not deem the changes
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appropriate, this will be relayed back to the Proposer. Where applicable, an award of contract will not be recommended if changes are not agreeable to both parties.
7. Fees: Proposers shall provide a fee schedule to include hourly rates and titles of staff proposed. This information will not be used as a determining factor as to which firm we will enter into an agreement with. It will be used as a basis of compensation for future work under the Agreement.
6. EVALUATION AND CRITERIA
A committee will review and evaluate the RFP submitted based on the following criteria and maximum points allotted. The Committee will “short-list” the most qualified firms, utilizing the selection criteria listed below. In the event that the Selection Committee requires an interview, it is mandatory that all principals of the firm and the designated City Engineer attend.
A committee will review and evaluate the RFP submitted based on the following criteria and maximum points allotted.
Criteria POINTS
Consultants understanding of the City’s needs under this RFP and overall responsiveness to the requirements. 20
Consultant Team - expertise, capabilities and technical competence of key personnel, familiarity with state and federal procedures, local experience on comparable services/municipal agencies.
30 Relevant experience performed by the Consultant Team; details about comparable services completed by the firm, as well as local experience; ability to provide the required services; references from agencies
30 Technical competence and expertise as demonstrated by the proposer’s expressed subject matter understanding, proposed approach, delivery and methodology.
20 Interview (optional) 20
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Appendix A: Critical Building List
1. Police Headquarters, 750 Bellevue Rd.
2. City Administration Building, 1160 Fifth St.
3. City Hall, 1350 Broadway.
4. Atwater High School,
5. Buhach Colony High School
6. All Atwater Elementary School District Sites within the City of Atwater
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ATTACHMENT A – SAMPLE CONTRACT AGREEMENT
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Professional Services Agreement between [DATE]
City of Atwater and ______________ Page 1 of 16
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF ATWATER AND _____________ (PROFESSIONAL)
THIS AGREEMENT for professional services is made by and between the City of Atwater, a California municipal corporation (“City”) and _______________, a ________________ , (“Professional”) as of _________________, 20XX (the “Effective Date”). City and Professional shall be referred to herein separately as a “Party” and collectively as “Parties”.
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Professional shall provide to City the services described in the Scope of Work attached hereto and incorporated herein as Exhibit A. In the event of a conflict in or inconsistency between the terms of this Agreement and the Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end on ___________, the date of completion specified in Exhibit A. Professional shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Professional to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Professional shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Professional is engaged in the geographical area in which Professional practices its profession. Professional shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Professional's profession.
1.3 Assignment of Personnel. Professional shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Professional shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. All personnel, including those reassigned at City’s request, shall be supervised by Professional. Professional is prohibited from subcontracting this Agreement, or any part of it, unless such subcontracting is expressly approved by City in writing.
1.4 Time. Professional shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.2 above and to satisfy Professional’s obligations hereunder.
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Professional Services Agreement between [DATE]
City of Atwater and ______________ Page 2 of 16
Section 2. COMPENSATION. City hereby agrees to pay Professional a sum not to exceed ________________, notwithstanding any contrary indications that may be contained in Professional’s proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Professional’s fee schedule regarding the amount of compensation, attached as Exhibit B, the Agreement shall prevail. City shall pay Professional for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Professional for services rendered pursuant to this Agreement. Professional shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Professional shall not bill City for duplicate services performed by more than one person.
Professional and City acknowledge and agree that compensation paid by City to Professional under this Agreement is based upon Professional’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Professional. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Professional and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Professional shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs, if any, incurred prior to the invoice date. Invoices shall contain the following information:
▪ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; ▪ The beginning and ending dates of the billing period; ▪ A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
▪ At City’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
▪ The total number of hours of work performed under the Agreement by Professional and each employee, agent, and subcontractor of Professional performing services hereunder;
▪ The Professional’s signature; and
▪ Professional shall give separate notice to the City when the total number of hours worked by Professional and any one individual employee, agent, or subcontractor of Professional reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete work described in Exhibit A, if applicable.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall
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have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Professional.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Professional pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Professional in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Professional submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Hourly Fees. Fees for work performed by Professional on an hourly basis shall not exceed the amounts shown on the fee schedule set forth in Exhibit B.
2.6 Reimbursable Expenses. Reimbursable expenses, if any, are set forth in Exhibit B, and shall not exceed ______________ ($_____ ). Expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Professional is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Professional terminates this Agreement pursuant to Section 8, the City shall compensate the Professional for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Professional shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Professional is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator, as defined in Section 11.9.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Professional shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Professional only the facilities and equipment listed in this Section, and only under the terms and conditions set forth herein.
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Professional Services Agreement between [DATE]
City of Atwater and ______________ Page 4 of 16
City may furnish, at its sole discretion, physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Professional’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Professional, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Professional and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Professional shall provide proof satisfactory to the City of such insurance that meets the requirements of this Section and under forms of insurance satisfactory in all respects and that such insurance is in effect prior to beginning work to the City. Professional shall maintain the insurance policies required by this Section throughout the term of this Agreement. The cost of such insurance shall be included in the Professional’s bid. Professional shall not allow any subcontractor to commence work on any subcontract until Professional has obtained all insurance required herein for the subcontractor(s) and provided evidence that such insurance is in effect to the City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Professional shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers’ Compensation. Professional shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Professional. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000) per accident. In the alternative, Professional may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code.
Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Professional, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Professional shall notify City within fourteen (14) days of notification from Professional’s insurer if such coverage is suspended, voided or reduced in coverage or in limits.
The requirement to maintain Statutory Worker’s Compensation and Employer’s Liability Insurance may be waived by the City upon written verification that Professional does not have any employees.
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Professional Services Agreement between [DATE]
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4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Professional, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than TWO MILLION DOLLARS ($2,000,000.00) and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00). The commercial general liability and automobile liability insurance shall be per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a commercial general liability insurance or an automobile liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition), Code 1 (any auto). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Professional, including the insured’s general supervision of Professional; products and completed operations of Professional; premises owned, occupied, or used by Professional; and automobiles owned, leased, or used by the Professional. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers,
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and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of Professional to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Professional shall notify City within fourteen (14) days of notification from Professional’s insurer if such coverage is suspended, voided or reduced in coverage or in limits.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Professional, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than TWO MILLION DOLLARS ($2,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim. An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, or reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
4.3.2 Claims-made form. The following provisions shall also apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Professional must purchase an extended reporting coverage for a minimum of five (5) years after completion of the Agreement or the work under this Agreement, whichever is later.
d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement.
4.4 All Policies Requirements.
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Professional Services Agreement between [DATE]
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4.4.1 Acceptability of insurers. All insurance required by this Section is to be placed with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Professional shall furnish City with certificates of insurance evidencing required policies delivered to Professional by the insurer, including complete copies of all endorsements attached to those certificates. All copies of policies and endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Professional beginning work, it shall not waive the Professional’s obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time.
4.4.3 Subcontractors. Professional shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
4.4.4 Deductibles and Self-Insured Retentions. Professional shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Professional may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Professional procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
4.4.5 Wasting Policies. Except for Professional Liability insurance policy, no policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
4.4.6 Waiver of Subrogation. Professional hereby agrees to waive subrogration which any insurer or contractor may require from vendor by virtue of the payment of any loss. Professional agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Professional, its employees, agents, and subcontractors.
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Professional Services Agreement between [DATE]
City of Atwater and ______________ Page 8 of 16
4.5 Remedies. In addition to any other remedies the City may have if Professional fails to provide or maintain any insurance policies, or policy endorsements, to the extent and within the time herein required, the City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies the City may have and are not the exclusive remedy for Professional’s breach:
▪ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
▪ Order Professional to stop work under this Agreement or withhold any payment that becomes due to Professional hereunder, or both stop work and withhold any payment until Professional demonstrates compliance with the requirements hereof; and/or ▪ Terminate this Agreement.
Section 5. INDEMNIFICATION AND PROFESSIONAL’S RESPONSIBILITIES.
5.1 General Requirement. Professional shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Professional or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Professional shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Professional or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Professional to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Professional from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Professional acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
5.2 PERS Indemnification. In the event that Professional or any employee, agent, or subcontractor of Professional providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Professional shall indemnify, defend, and hold harmless City for the payment of any employee and/or
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City of Atwater and ______________ Page 9 of 16
employer contributions for PERS benefits on behalf of Professional or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
5.3 Design Professionals. To the extent that the services under this Agreement include design professional services subject to California Civil Code Section 2782.8, as may be amended from time to time, Professional’s duty to indemnify under Sections 5.1 and 5.2 shall only be to the maximum extent permitted by California Civil Code Section 2782.8.
Section 6. STATUS OF PROFESSIONAL.
6.1 Independent Contractor. At all times during the term of this Agreement, Professional shall be an independent contractor as defined in Labor Code Section 3353, and shall not be an employee of City. Nothing contained in this Agreement shall be construed to be inconsistent with the foregoing relationship or status. City shall have the right to control Professional only insofar as the results of Professional's services rendered pursuant to this Agreement and assignment of personnel pursuant to Section 1.3; however, otherwise City shall not have the right to control the means by which Professional accomplishes services rendered pursuant to this Agreement. Professional shall have no power or authority by this Agreement to bind the City in any respect. All employees and agents hired or retained by Professional are employees and agents of Professional and not of the City. The City shall not be obligated in any way to pay any wage claims or other claims made against Professional by any such employees or agents, or any other person resulting from performance of this Agreement.
Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Professional and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
Professional shall not allow any employee to become eligible for a claim for PERS benefits.
6.2 Professional Not an Agent. Except as City may specify in writing, Professional shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Professional shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
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7.2 Compliance with Applicable Laws. Professional and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Professional’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Professional, and any subcontractors, shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Professional represents and warrants to City that Professional and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Professional represents and warrants to City that Professional and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Professional and any subcontractors shall obtain and maintain valid Business Licenses from City during the term of this Agreement.
7.5 Nondiscrimination and Equal Opportunity. Professional shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Professional under this Agreement. Professional shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Professional thereby.
Professional shall include the provisions of this Section in any subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Professional.
Professional may cancel this Agreement upon _____________ days’ prior written notice to City and shall include in such notice the reasons for cancellation.
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In the event of termination, Professional shall be entitled to compensation for services performed to the satisfaction of the City to the effective date of termination; City, however, may condition payment of such compensation upon Professional delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Professional or prepared by or for Professional or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Section 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Professional understands and agrees that, if City grants such an extension, City shall have no obligation to provide Professional with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Professional for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.4 Assignment and Subcontracting. City and Professional recognize and agree that this Agreement contemplates personal performance by Professional and is based upon a determination of Professional’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Professional.
Professional may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Professional shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Professional shall survive the termination of this Agreement.
8.6 Options upon Breach by Professional. If Professional materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement. City shall not in any manner be liable for Professional’s actual or projected lost profits had Professional completed the services required by this Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Professional pursuant to this Agreement;
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8.6.3 Retain a different professional to complete the work described in Exhibit A not finished by Professional; or
8.6.4 Charge Professional the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Professional pursuant to Section 2 if Professional had completed the work.
Section 9. Confidentiality. Professional understands and agrees that, in the performance of services under this Agreement or in the contemplation thereof, Professional may have access to confidential information or other materials exempt from public disclosure, and that such information may contain sensitive or confidential data, the disclosure of which to third parties may be damaging to City (“Confidential Information”) or any third party. Professional shall not, either during or after the Term, disclose to any third party any Confidential Information without the prior written consent of City. If City gives Professional written authorization to make any such disclosure, Professional shall do so only within the limits and to the extent of that authorization.
Section 10. KEEPING AND STATUS OF RECORDS.
10.1 Records Created as Part of Professional’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Professional prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Professional hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Professional agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.
10.2 Professional’s Books and Records. Professional shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Professional to this Agreement.
10.3 Inspection and Audit of Records. Any records or documents that Section 10.2 of this Agreement requires Professional to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request
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of the City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
Section 11. MISCELLANEOUS PROVISIONS.
11.1 Attorneys’ Fees and Costs. If a Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs, in addition to any other relief to which that Party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
11.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Merced or in the United States District Court, Eastern District of California.
11.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
11.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
11.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
11.6 Use of Recycled Products. Professional shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
11.7 Conflict of Interest. Professional may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Professional in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code section 81000 et seq.
Professional shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code sections 1090 et seq.
Professional hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Professional was an employee,
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agent, appointee, or official of the City in the previous twelve months, Professional warrants that it did not participate in any manner in the forming of this Agreement. Professional understands that, if this Agreement is made in violation of Government Code section 1090 et seq., the entire Agreement is void and Professional will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Professional will be required to reimburse the City for any sums paid to the Professional. Professional understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code section 1090 and, if applicable, will be disqualified from holding public office in the State of California.
11.8 Solicitation. Professional agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
11.9 Contract Administration. This Agreement shall be administered by _______________________________ ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.
11.10 Notices. Any written notice to Professional shall be sent to:
____________________________________________
____________________________________________
____________________________________________
Email Address (for Insurance Update Requests)
____________________________________________
Any written notice to City shall be sent to:
____________________________________________
____________________________________________
____________________________________________
11.11 Professional Seal. Where applicable in the determination of the contract administrator or when required by law, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example.
_________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
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11.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A, and the fee schedule attached hereto and incorporated herein as Exhibit B, represents the entire and integrated agreement between City and Professional and supersedes all prior negotiations, representations, or agreements, either written or oral.
11.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
11.14 Time is of the Essence. Time is of the essence in this Agreement for each covenant and term of a condition herein.
11.15 Authority. All Parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement and the names, titles, and capacities herein stated on behalf of any entities, persons, states, or firms represented or purported to be represented by such entities, persons, states or firms and that all former requirements necessary or required by the state or federal law in order to enter into the Agreement have been fully complied with.
11.16 Drafting and Ambiguities. Each Party acknowledges that it has reviewed this Agreement with its own legal counsel, and based upon the advice of that counsel, freely entered into this Agreement. Each Party has participated fully in the review and revision of this Agreement. Any rule of construction that ambiguities are to be resolved against the drafting party does not apply in interpreting this Agreement.
11.17 Headings. Headings used in this Agreement are for reference purposes only and shall not be considered in construing this Agreement.
11.18 IRS Form W-9. Professional shall complete and submit Internal Revenue Service Form W-9 to the City before execution of this Agreement. The City’s Finance Director shall have authority to waive this requirement.
[signatures on the following page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
CITY PROFESSIONAL
____________________________ ______________________________ Lori Waterman, City Manager [NAME, TITLE]
Attest:
____________________________
Kory Billings, City Clerk
Approved as to Form:
_________________________________
Frank Splendorio, City Attorney
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Exhibit A to Professional Services Agreement between [DATE] City of Atwater and ______________ Page 1 of 1
EXHIBIT A
SCOPE OF WORK
Exhibit B to Professional Services Agreement between [DATE] City of Atwater and ______________ Page 1 of 1
EXHIBIT B
FEE SCHEDULE
CITY COUNCIL
AGENDA REPORT
MEETING
DATE:
April 24, 2023
TO: Mayor and City Council
FROM: Lori Waterman, City Manager
PREPARED
BY:
Lori Waterman, City Manager
SUBJECT: Human Resources Director Employment Agreement (City Manager Waterman)
RECOMMENDED COUNCIL ACTION
Motion to approve Human Resources Director Employment Agreement in the annual amount of $136,731.84 plus benefits with Jana R. Sousa; and to authorize and direct the City Manager to execute the Agreement on behalf of the City; or Motion to approve staff's recommendation as presented.
I. BACKGROUND/ANALYSIS:
Failure to maintain appropriate staffing levels in city management limits the city from planning for the future, and negatively affects the City's financial, budgetary, and other operating processes. The City Manager continues to review and analyze the City's organizational structure to ensure resources are optimized and aligned with current and future needs of the City. Appointment of a replacement Human Resources Director will reaffirm to the community and staff the City's ability to maintain organization and leadership continuity.
The City Manager interviewed internal candidate Jana R. Sousa and determined that Ms. Sousa is the preferred candidate. Ms. Sousa brings with her twenty (20) years of experience in Human Resources with a municipal government agency.
Pursuant to the terms of the Atwater Municipal Code, the City Manager negotiated a Human Resources Director Employment Agreement ("Agreement") with Ms. Sousa. The Agreement is presented to the City Council pursuant to Government Code 54953, which requires the public agency to approve all contracts for employment with local agency executive, as defined, in an open session of the governing body.
The Agreement contains the following proposed provisions:
o The Agreement shall expire in April 2028, which is a term of 5 (five) years.
CITY COUNCIL
Mike Nelson, Mayor
Danny Ambriz Tyler Button
John Cale Brian Raymond
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o The Human Resources Director's salary shall be $136,731.84 per year. o The City shall pay the Human Resources Director's premiums for her and her qualified dependents' medical, dental, and vision insurance on the same terms and conditions as are offered to other similarly situated City Employees. o The City shall provide the Human Resources Director a City vehicle. o If the Human Resources Director is terminated without cause, she shall be entitled to severance in the amount of four (4) months of wages. o The Human Resources Director will receive 80 hours of administrative leave per year (accrued at 20 hours per quarter), but she may cash out unused leave, if there are available funds.
o The Human Resources Director shall be credited with 40 hours of vacation leave on date of hire. Employee shall accrue five (5) hours of vacation leave per pay period over 24 pay periods a year (approximately 120 hours of vacation leave annually).
II. FISCAL IMPACTS:
Sufficient funding is available, for the remainder of this fiscal year, in the appropriate General Fund, HR Department, Salary and Benefit account numbers 0001.1020.1001 through 0001.1020.1015. The HR Director position will be budgeted in the upcoming FY 2023-2024 budget for the full year.
This item has been reviewed by the Finance Department.
III. LEGAL REVIEW:
The item and the Agreement have been reviewed by the City Attorney's Office.
IV. EXISTING POLICY:
This item is consistent with optimizing the City's Organizational Structure, goal number
4.1.c. of the City's 2020-2025 Strategic Plan: "Adjust the organizational structure as needed."
V. ALTERNATIVES:
Not required for all staff reports but should be included in most reports where the Council should be considering options, or discussion of options already investigated.
If there are Policy options for consideration, the discussion should be specific and detailed.
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
The purpose of approving employment agreements in an open session of the governing body is to provide the public the opportunity to provide comments prior to approval by
Agenda Report - Page 3
the City Council.
VIII. ENVIRONMENTAL REVIEW:
This item is not a "project" under the California Environmental Quality Act ("CEQA") as this activity does not cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to Public Resources Code section 21065.
IX. STEPS FOLLOWING APPROVAL:
Upon ratification of the Agreement by the City Council, the City Manager, City Attorney, City Clerk, and the employee shall execute the Agreement.
Submitted and Approved by:
Lori Waterman, City Manager
Attachments:
1. Jana R. Sousa - Contract for Human Resources Director
2. Human Resources Director
City of Atwater
Human Resources Director
Employment Agreement
HUMAN RESOURCES DIRECTOR
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the __ day of April 2023, (“Effective Date”), by and between the CITY OF ATWATER (“City”) and JANA R. SOUSA (“Employee”). The City and Employee shall be referred to herein individually as a “Party” and collectively as “Parties.” There are no other parties to this Agreement.
RECITALS
A. The City Manager is authorized to negotiate and enter into employment agreements with Department Directors subject to the advice and consent of the Atwater City Council (“City Council”) pursuant to the terms of the Atwater Municipal Code (“Municipal Code”).
B. The City Manager has evaluated Employee’s knowledge, experience, skills, and ability to serve as the City’s Human Resources Director and has recommended to the City Council that Employee be appointed as the Human Resources Director for the City pursuant to the terms of this Agreement.
C. The Parties agree that this Agreement shall be the sole agreement between the Parties regarding the employment of Employee as Human Resources Director.
D. The Parties desire to execute this Agreement pursuant to the authority of, and subject to, the provisions of California Government Code (“Government Code”) section 53260 et seq.
NOW, THEREFORE, in consideration of the mutual covenants entered into between the Parties, and in consideration of the benefits that accrue to each, it is agreed as follows:
AGREEMENT
Section 1. Recitals. The recitals set forth above (“Recitals”) are incorporated herein by this reference and made a part of this Agreement. In the event of any inconsistencies between Recitals and Section 1 through 10 of this Agreement, Sections 1 through 10 will prevail.
City of Atwater
Human Resources Director
Employment Agreement
Section 2. Appointment of Human Resources Director, Duties, and Term.
Section 2.1. Appointment of Human Resources Director and Duties.
Subject to the consent of and ratification by the City Council, the City Manager hereby appoints Employee to the position of Human Resources Director effective April __, 2023, in and for the City, to perform the function and duties of the Human Resources Director, under the direction of the City Manager. Employee accepts such appointment and employment pursuant to the terms of this Agreement.
Section 2.2. Secondary Employment/Conflict of Interest. Employee agrees to devote all productive time, ability, and attention to the City’s business to the extent necessary to perform the duties and responsibilities in a manner satisfactory to City.
A) During the Term, as defined in Section 2.5 of this Agreement, Employee shall not hold secondary employment or engage in activities which conflict with, or present the appearance or possibility of conflicting with, City’s business interests. As such, Employee agrees that Employee will notify the City Manager in writing if Employee accepts secondary employment, so that the City may determine whether there is a conflict or potential conflict with the satisfactory performance of Employee’s duties and/or the best interest of the City. Employee has the right to volunteer for such nonprofit organizations as she may see fit, provided that such volunteer services do not interfere with the duties as Human Resources Director or conflict with, or present the appearance or possibility of conflicting with, the City’s business interests.
B) Employee shall not engage in any activity that is, or may create, a conflict of interest, prohibited contract, or that may create an incompatibility of office under state law. Prior to performing services under this Agreement, and annually thereafter, Employee must complete financial disclosure forms required bylaw.
Section 2.3. Exempt Employee. Typical general business hours for City employees are Monday through Friday, 8:00 AM to 5:00 PM. However, it is recognized by the Parties that Employee is an exempt employee for purposes of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). Employee shall not receive overtime or extra compensation for hours worked outside of the City’s general business hours, which are necessary to fulfill the duties of the Human Resources Director, unless otherwise provided in this Agreement.
Section 2.4. Duties/Schedule. The Human Resources Director’s daily and weekly work schedule shall vary in accordance with the work required to be performed. The Human Resources Director position may include frequent attendance at evening meetings and frequent irregular hours as necessary to meet deadlines and achieve objectives. The City Manager recognizes that the Human Resources Director must devote a great deal of time outside normal office hours
City of Atwater
Human Resources Director
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to business of the City and, to that end, will be allowed to take Administrative Leave, as defined in Section 4.4 of this Agreement, as she shall deem appropriate during said normal office hours, subject to notification and approval of the City Manager.
The Human Resources Director’s initial duties shall be as shown in the job description attached hereto as Exhibit A. Employee shall perform Employee’s duties under this Agreement pursuant to the laws of the State of California and applicable City Municipal Code, ordinances, and resolutions. Employee understands that Employee’s duties may be amended from time to time by the City Manager as necessary to meet the City’s needs. No modification or change in Employee’s responsibilities, duties or position shall otherwise change or revoke any other provision of this Agreement.
Unless otherwise specified in this Agreement, Employee shall be bound by all the policies, rules, and regulations of the City now in force and effect and applicable to Employee’s position, and by all such other applicable policies, rules and regulations as may be hereafter implemented and called to her notice and will faithfully observe and abide by the same. No such policy, rule or regulation shall alter, modify or revoke employee’s status as an at-will employee or any other provision of this Agreement.
Section 2.5. Term. The term of this Agreement shall be for five (5) years from the date of Appointment, April __, 2023, (“Term”) subject to Section 5 of this Agreement. The City in its sole discretion, may extend the Term from time to time in increments of at least one (1) year. No later than one (1) month prior to the expiration of the Term, the City shall provide written notice to Employee as to whether the City intends to extend the Term. Termination of this Agreement shall be in accordance with Section 5 below.
Section 3. At-Will Employment.
Section 3.1. At-Will. Employee is an at-will employee serving at the pleasure of the City Manager, as provided in Government Code section 36506.
Accordingly, the City Manager may terminate Employee’s employment at any time, with or without cause.
Section 3.2. No Property Right in Employment. Employee understands and agrees that the terms of employment are governed only by this Agreement and that no right of employment for any specific term is created by this Agreement.
Employee further understands that based on the “at-will” employment status, Employee acquires no property interest in employment by virtue of this Agreement, and that Employee is not entitled to due process for any disciplinary actions under the City’s personnel policies and rules.
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Section 4. Compensation and Benefits
Section 4.1 Human Resources Director Salary. Beginning April __, 2023, Employee shall be compensated at Step 6 of Range 335b of the Salary Schedule (currently in the amount of $11,394.32 per month/$136,731.84 per year) for services performed as Human Resources Director. This position is exempt from any City furlough program. Employee’s performance shall be reviewed annually pursuant to the City’s Performance Evaluation Policy and Employee shall be eligible to have her salary adjusted annually thereafter as set forth in the Salary Schedule, consistent with the Mid Managers Group, or Department Director Group (if established), whichever provides the greater benefit to Employee.
Section 4.2. Review and Evaluation. The City Manager agrees to review and evaluate Employee’s performance of Employee’s duties as Human Resources Director, pursuant to the terms of this Agreement (“Review and Evaluation”), on not less than an annual basis and to provide Employee with a written performance review. The annual Review and Evaluation shall be conducted on or about April __ of each year, or at the City Manager’s discretion.
Section 4.3. Vehicle. During the term, or any extension thereof, the City will provide Employee with an assigned vehicle to be used to and from home and work and will cover the costs and expenses associated with said vehicle. In the event the Human Resources Director requests and is authorized to use a private vehicle for City business, she shall be reimbursed for mileage in accordance with City policies.
Section 4.4. Administrative Leave. It is recognized that Employee must devote a great deal of time outside the normal office hours to City business as Human Resources Director. To that end, Employee shall receive up to eighty (80) hours of administrative leave (“Administrative Leave”) per calendar year, to be used as needed, upon the approval of the City Manager. Approved but unused Administrative Leave may be cashed out annually at the discretion of the City Manager and only if budgeted funds are available to permit the cash out.
Administrative Leave is only available for use or cash out in the year in which it is given, has no other cash value, and may not be carried over into a subsequent year.
Section 4.5. Sick and Vacation Leave.
Section 4.5.1 Sick Leave.Employee shall accrue four (4) hours of sick leave each pay period over 24 pay periods a year.
Employee shall be permitted to cash out up to ninety-six (96) hours of accrued and unused sick leave annually pursuant to City policy at the discretion of the City Manager and only if budgeted funds are available to permit the cash out. There is no cap on sick leave accruals. If employee’s employment with the City terminates, sick
City of Atwater
Human Resources Director
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leave shall be paid out pursuant to the City’s Paid Sick Leave Policy on the same terms and conditions as are offered to other City employees, consistent with the Mid Managers Group, or Department Director Group (if established), whichever provides the greater benefit to Employee.
Section 4.5.2. Vacation Leave. In recognition of
Employee’s twenty (20) years of experience in Human Resources with a municipal government agency, Employee shall be credited with 40 hours of vacation leave on date of hire. Employee shall accrue 5 hours of vacation leave per pay period over 24 pay periods a year. Employee may cash out up to eighty (80) hours of accrued, unused vacation annually at the discretion of the City Manager and only if budgeted funds are available to permit the cash out. Accruals are capped at twice the annual accrual amount.
Section 4.6. Holidays. Employee shall be subject to the provisions governing Holidays as are set forth in the City’s Personnel Rules and Regulations.
Section 4.7. Medical, Dental and Vision.
4.7.1. Medical, Dental and Vision. During the Term of this Agreement, or any extension hereof, the City shall pay the premiums for Employee and qualified dependents’ for medical, dental and vision insurance on the same terms and conditions as are offered to other similarly situated City employees, consistent with the tier system utilized for the Mid Managers Group or Department Director Group (if established), whichever provides the greater benefit to Employee. Employee shall be responsible for the payment of any premiums not paid for by the City and all deductibles, co-payments and disallowed costs. Should Employee elect not to participate in the City’s medical plan or elect to enroll in medical coverage through a spouse, Employee shall be eligible for in-lieu payments in the amount set for the Mid Managers Group or Department Director Group (if established), whichever provides the greater benefit to Employee.
4.7.2 Medical Upon Retirement. If Employee is a qualified annuitant under the requirements of CalPERS and the effective date of retirement is less than one hundred and twenty (120) days after separation from employment with the City, Employee may elect to participate in the City’s medical insurance plans. If qualified for enrollment, the City shall pay the premiums consistent with the tier system utilized for the Mid Managers Group or Department Director Group (if established), whichever provides the greater benefit to Employee at the time of Employee’s retirement. Employee shall be
City of Atwater
Human Resources Director
Employment Agreement
responsible for the payment of any premiums not paid for by the City and all deductibles, co-payments and disallowed costs. When Employee and qualified dependents become eligible for Medicare, the City’s medical insurance plan shall become secondary insurance and the City’s obligation to pay premiums as set forth in this Section shall be reduced accordingly.
4.7.3 Dental and Vision Upon Retirement. Upon Employee’s retirement from the City, Employee and eligible dependents may elect to remain on the City’s dental and/or vision coverage plans.
Employee will be responsible for paying the full amount of the monthly premium amounts for Employee and eligible dependents, established by the City’s provider, as well as all deductibles, copayments, and disallowed costs. Said amounts are subject to change annually. The City shall bill Employee on a monthly basis for the full amount of the monthly premiums. Non-payment will result in disenrollment of Employee and eligible dependents without the option to re-enroll.
Section 4.8. Retirement. The City participates in the California Public Employees’ Retirement System (CalPERS). CalPERS will make the determination if Employee is considered a “Classic” or “New Member” (as defined under Government Code section 7522.04), and Employee shall contribute based on the enrolled tier. Employee shall pay 100% of the employee contribution.
Section 4.9. Life Insurance and Accidental Death and
Dismemberment. During the term of this Agreement, or any extension hereof, the City shall pay 100% of all premiums per existing policy in place at time of agreement to cover the life insurance policy currently in place for the benefit of Employee.
Section 4.10. Disability. During the term of this Agreement, or any extension hereof, the City shall pay 100% of all premiums per existing policy in place at time of agreement to cover both short term and long-term disability benefits for the benefit of Employee.
Section 4.11. Unemployment. During the term of this Agreement, or any extension hereof, the City shall contribute to the Unemployment Insurance Program for the benefit of Employee, at no cost to Employee.
Section 4.12. Changes in Fringe Benefits or Working Conditions.
Except as otherwise provided herein, all provisions of the Rules and Regulations of the City relating to changes to fringe benefits and/or working conditions as they now exist, or hereinafter may be amended, shall also apply to Employee as they would to other similarly situated City employees, consistent with the policy for the
City of Atwater
Human Resources Director
Employment Agreement
Mid Managers Group or Department Director Group (if established), in addition to the benefits enumerated for the benefit of Employee as herein provided.
Section 4.13. Professional Development. Subject to available funds, the City agrees to pay the professional dues, subscriptions, travel, and other business expenses of Employee reasonably necessary for continued and full participation in national, state, and local associations, professional organizations, governmental groups and committees thereof for the good of the City in accordance with the approved budget.
Section 4.15 Expense Reimbursement. The City shall reimburse Employee for all sums necessarily incurred and paid by Employee in the performance of her duties, as approved by the City Manager. Employee shall submit a claim form or appropriate documentation to the City in compliance with City policies.
Section 5. Termination of Employment and Severance.
Section 5.1. Voluntary Resignation. Employee may resign at any time and agrees to give the City at least thirty (30) days advance written notice of the effective date of Employee’s resignation, unless the Parties otherwise agree in writing. If Employee retires from full-time public service with the City, Employee shall provide three (3) months advance written notice. During the notice period, all rights and obligations of the Parties under this Agreement shall remain in full force and effect. Promptly after the effective date of resignation or retirement, the City shall pay to Employee all salary and other compensation due and owing under this Agreement. In the event of voluntary resignation or retirement, Employee shall not be entitled to Severance, as set forth in Section 5.3 of this Agreement.
Section 5.2. Termination by City Manager. The City Manager may terminate this Agreement and remove Employee from her position as Human Resources Director at any time with or without cause. If Employee’s termination is based on charges of misconduct that publicly stigmatizes Employee’s reputation or impairs her ability to earn a living, or might damage her standing in a community, Employee may, within five (5) business days of the City Manager’s notice to Employee of his or her intent to terminate Employee’s employment, make a written request for a "name-clearing" hearing (as described in Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340 and its progeny) before the City Council in closed session. The "name-clearing" hearing is solely to provide Employee the opportunity to clear her name. The City Council may determine whether the allegations contained in the notice of termination are supported. If the City Council determines that the allegations are not supported, a decision shall be issued to reflect that Employee's termination was without fault. This decision will not, however, require that Employee be reinstated to her position. In the event Employee does not request a "name-clearing" hearing before the City Council, the
City of Atwater
Human Resources Director
Employment Agreement
City Manager’s decision to terminate will be effective by the close of business on the fifth (5th) day after the City Manager provided notice to Employee of his or her intent to terminate Employee’s employment. Should the Employee request a name clearing hearing within the five (5) days, termination will still take effect after the fifth day and Employee will not be on paid status during this period.
Section 5.3. Termination With Severance. This provision only relates to Employee’s ability to receive severance pay pursuant to this Agreement and does not in any way impact Employee’s at-will status. In the event the City terminates Employee’s employment and this Agreement without Good Cause, as defined in Section 5.4, below, the Employee shall receive a sum equal to four (4) month’s Base Salary or Base Salary for remaining number of months on the Agreement’s term, whichever is less (“Severance”). Such Severance is subject to the restrictions of Government Code section 53260. Severance shall be paid in the same manner as to other similarly situated City employees unless otherwise agreed to by the City and Employee. Employee’s eligibility for Severance shall be expressly conditioned upon Employee executing a waiver and release agreement forever releasing and waiving any and all claims against the City, and its employees, elected officials, and agents, in a form acceptable to the City.
Employee shall not receive any Severance if she resigns, is terminated for cause, or if a waiver and release agreement is not executed by the parties.
Section 5.4. Termination Without Severance. This provision only relates to Employee’s ability to receive severance pay pursuant to this Agreement, and does not in any way impact Employee’s at-will status. The City may at any time immediately terminate this Agreement and Employee’s employment for Good Cause, as defined below. If Employee is terminated for Good Cause, the City shall not be required to pay any Severance under this Agreement, and the City shall have no obligation to Employee beyond those benefits accrued as of Employee’s last day of employment and those the City is obligated to provide under federal or state law.
“Good Cause” for purposes of this Agreement is defined as the following:
1. Conviction of a felony;
2. Disclosing confidential or protected information of the City;
3. Misconduct or gross carelessness;
4. Unjustifiable and willful neglect of the duties described in this Agreement or Employee’s job description;
5. Mismanagement;
6. Dishonesty;
7. Failure to perform Employee’s duties to the standard set by the City, as determined by the City Manager,
8. Any conduct which violates the applicable provisions of the City’s personnel policies, rules or regulations;
9. Repeated or protracted unexcused absences from the
Employee’s office and duties;
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Employment Agreement
10. Conduct that in any way has a direct, substantial, and adverse effect on the City’s reputation or the Administration
Department whether during or outside business hours;
11. Violation of federal, state, or City discrimination laws;
12. Refusal to take or subscribe any oath or affirmation which is required by law;
13. Employee’s disability resulting in her inability to perform the essential functions of her job, which the City is unable to reasonably accommodate without placing an undue burden
on City business operations;
14. Engaging in other employment or activities which conflict with, or present the appearance or possibility of conflicting with, City’s legitimate business interests; or
15. Substance abuse which adversely affects performance of Employee’s duties.
The City Manager may also place Employee on paid or unpaid investigatory leave during the Term of this Agreement.
Section 6. Notices. Any notice or communication required hereunder between the City and Employee must be in writing and may be given either personally, by facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express, UPS, or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed.
If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving Party’s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day, or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (b) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered, as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given.
Such notices or communications shall be given to the Parties at their addresses set forth below:
If to Employee: City of Atwater
Attn: Jana R. Sousa
1160 5th Street
City of Atwater
Human Resources Director
Employment Agreement
Atwater, California 95301
CC: Employee’s home address on file
If to the City: City of Atwater
Attn: City Manager
1160 5th Street
Atwater, California 95301
Section 7. Indemnification. The City shall defend, hold harmless, and indemnify Employee against any tort, personnel, civil rights, or professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of Employee’s duties as Human Resources Director in accordance with the California Government Claims Act (Government Code section 810 et seq.) and shall provide a defense to Employee in accordance with Government Code sections 995-996.6.
The City may decline to defend or indemnify Employee only as permitted by the Government Code. City may compromise and settle any such claim or suit and pay the amount of any resulting settlement or judgment; provided, however, the City’s duty to defend and indemnify Employee shall be contingent upon Employee’s good faith cooperation with such defense. In the event the City provides paid leave to the Employee pending an investigation or funds for a legal criminal defense pursuant to this Section, Employee shall reimburse the City for the amount of such paid leave or cost of the legal criminal defense, if Employee is convicted of a crime involving an abuse of office or position, as provided by Government Code sections 53243-53243.1. Also, if this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City if Employee is convicted of a crime involving an abuse of his or her office or position as provided in Government Code section 53243.2-53243.4
Section 8. Bonding. The City shall bear the full cost of any fidelity or other bonds required of Employee under any law or ordinance.
Section 9. General Provisions
9.1. Modification of Agreement. This Agreement may be
supplemented, amended, or modified only by a writing signed by the City and Employee.
9.2. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the Parties and supersedes all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement.
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9.3. Severability of Agreement. If a court or an arbitrator of competent jurisdiction holds any section of this Agreement to be illegal, unenforceable, or invalid for any reason, the validity and enforceability of the remaining sections of this Agreement shall not be affected.
9.4. Authority. All Parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement and the names, titles, and capacities herein stated on behalf of any entities, persons, states, or firms represented or purported to be represented by such entities, persons, states, or firms and that all former requirements necessary or required by state or federal law in order to enter into this Agreement had been fully complied with. Further, by entering into this Agreement, neither Party hereto shall have breached the terms or conditions of any other contract or agreement to which such Party is obligated, which such breach would have a material effect hereon.
9.5. Headings. The headings in this Agreement are included for convenience only, and neither affect the construction or interpretation of any section in this Agreement nor affect any of the rights or obligations of the Parties to this Agreement.
9.6. Necessary Acts and Further Assurances. The Parties shall, at their own cost and expense, execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.
9.7. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.
9.8. Waiver. No covenant, term, or condition, or the breach thereof, shall be deemed waived, except by written consent of the Party against whom the waiver is claimed, and any waiver of the breach of any covenant, term, or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition.
9.9. Counterparts. This Agreement may be executed in counterparts, including by signatures transmitted electronically or by fax, and all so executed shall constitute an agreement which shall be binding upon the Parties hereto, notwithstanding that the signatures of all Parties and Parties’ designated representatives do not appear on the same page.
9.10. Venue. Venue for all legal proceedings shall be in the Superior Court in and for the County of Merced in the State of California.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Employee and City as of the date of the Agreement set forth above.
City of Atwater
Human Resources Director
Employment Agreement
CITY:
City of Atwater, a municipal corporation
of the State of California
By:
Lori Waterman, City Manager
Date Signed:
EMPLOYEE:
By:
Jana R. Sousa, an individual
Date Signed:
Approved as to Form:
By:
Frank Splendorio, City Attorney
HUMAN RESOURCES DIRECTOR
DEFINITION
Under general direction of the City Manager, to plan, organize, direct, and manage the City’s human resources, payroll, and risk management functions; to administer City’s recruitment, selection, and employee relations; to coordinate City personnel and labor relations functions; to supervise the development and maintenance of the City payroll system, including preparation of payroll/reports; to coordinate and administer risk management programs; to assist the City Manager by developing and administrating management information systems; to coordinate assigned activities with other City departments and outside agencies; to supervise, train, and evaluate the work of staff assigned to the Human Resources Department; and to do related work as required.
Serves as Disaster Service Worker. FLSA Status: Exempt.
DISTINGUISHING CHARACTERISTICS
This is the top level executive management classification for the position which has responsibility for managing and directing the services and functions of the Human Resources Department as well as serving as the primary human resources advisor for the City Council, City Manager, and City staff.
REPORTS TO
City Manager.
CLASSIFICATIONS SUPERVISED
Office Assistant, Administrative Assistant I/II, Executive Assistant, Human Resources Assistant, Payroll Technician, and other assigned support staff.
ESSENTIAL FUNCTIONS
Plans, organizes, manages, and directs human resources, payroll, and risk management functions. Develops, plans, and implements department goals and objectives. Supervises, trains, motivates, and evaluates work performance of assigned office support staff.
Develops, plans, implements, and administers City personnel policies and procedures.
Directs and coordinates recruitment, selection, and orientation for vacancies including screening and testing applicants and other pre-employment activities for City positions; and prepares job announcements and schedules interviews. Provides and coordinates staff development and training. Performs classification and compensation duties; and maintains City classification plan and updates job specifications. Conducts compensation surveys and other research for labor relations. Administers labor units
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memoranda of understanding; and participates in “meet and confer” sessions with employee organizations. Maintains confidential information in accordance with legal standards and/or City regulations. Directs upkeep and maintenance of centralized personnel records. Serves as Administrator for CalPERS retirement benefits and Health Benefits Officer for CalPERS health benefits. Directs the administration of insurance and other employee benefits; and reviews contracts for insurance coverages. Serves as the City’s representative at Administrative Hearings for unemployment insurance disputes. Administers leave under the Federal Family Medical Leave Act, California Pregnancy Disability Leave, and California Family Rights Act. Administers and participates in advising departments on proper handling of employee issues including employee selection, training, evaluation, counseling, disciplinary actions, grievances, and appeal hearings. Works with City management staff on personnel actions, providing advice and consultation on appropriate rules, regulations, and procedures. Provides periodic reports on department activities to the City Council; prepares and presents staff reports and correspondence; and directs special projects and research as assigned.
Attends City Council meetings as required; may attend night and weekend meetings.
Serves as Risk Manager, Americans with Disabilities Act (ADA) Coordinator, and Safety Official. Conducts interactive process meetings with employees. Assesses workplace risks; and assures compliance with established codes and regulations. Serves as the City’s Designated Employer Representative (DER) for the City’s Department of Transportation Consortium Program. Oversees the City’s general liability insurance claims management and works closely with third party claims administrators on insurance related issues. Investigates claims filed against the City and on behalf of the City (restitution); administers workers’ compensation claims; investigates accidents and prepares reports; and represents City at related hearings. Serves as City representative and primary voting member on the Board of Directors for the Central San Joaquin Valley Risk Management Authority.
Performs a variety of accounting, fiscal analysis, and auditing in the preparation, maintenance, and analysis of City payroll; ensures that payroll data and reporting is in compliance with Fair Labor Standards Act and other applicable federal, state, and local rules and regulations; and reviews payroll transactions for accuracy. Interprets and applies memoranda of understanding and contracts for implementation. Reviews and maintains employee leave balance data. Serves as a major source of information regarding payroll processing, policies, regulations, and procedures in response to City staff and management.
Supervises and participates in development and administration of the Human Resources, Non-Departmental, Employee Benefits, Risk Management, and Information Technology budgets as well as the City’s personnel and labor budget; directs for forecast of additional funds needed for staffing, equipment, materials, and supplies; and monitors and approves expenditures.
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TYPICAL PHYSICAL REQUIREMENTS
Sit for extended periods; frequently stand and walk; normal manual dexterity and eyehand coordination; lift and move objects weighing up to 25 lbs.; corrected hearing and vision to normal range; verbal communication; use of office equipment including computer, telephone, calculator, copiers, and FAX; operate an automobile.
TYPICAL WORKING CONDITIONS
Work is performed in an office environment; frequent contact with other staff and the public.
MINIMUM QUALIFICATIONS
Knowledge of:
• Principles and practices of municipal organization, administration, and public personnel management including employer-employee relations, benefits, retirement programs, and classification and pay.
• Principles of personnel management including recruitment, selection, supervision, training, and employee evaluation.
• Planning, organizing, and directing risk management operations and health and safety programs.
• General accounting theory, principles, and practices. • Policies, practices, and methods of public agency payroll processing. • Pertinent federal, state, and local laws, codes, and regulations. • Records management, establishment, and maintenance of files and information retrieval systems.
• Budget development, administration, and expenditure control. • Computers and software applications related to personnel management, payroll, and risk management functions.
Ability to:
• Plan, organize, manage, and direct the human resources, payroll, and risk management functions.
• Provide supervision, training, and work evaluations for assigned staff. • Develop and implement department policies and procedures. • Serve as the Risk Manager.
• Serve as the Health Benefits Officer.
• Serve as the City’s Designated Employer Representative (DER) for the City’s Department of Transportation Consortium Program.
• Read, understand, and interpret codes, statutes, and information related to the development and maintenance of City payroll.
• Prepare and monitor department budgets.
• Prepare City’s personnel and labor budget.
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• Communicate clearly and effectively.
• Consult with management and staff.
• Prepare clear and concise reports and develop appropriate recommendations. • Interpret and apply federal, state, and local policies, procedures, laws, and regulations.
• Establish and maintain effective working relationships with staff, public, and organizations.
Training and Experience:
• Five (5) years of increasingly responsible professional experience in human resources, risk management, records management, employee benefits, and budgeting; and
• Five (5) years of administrative management and supervisory capacity.
SPECIAL REQUIREMENTS
• None.
Education:
• Graduation from an accredited college or university with a Bachelor’s degree in personnel administration, public administration, business administration, or closely related field.
License:
• Possession of a valid California driver’s license.
The contents of this class specification shall not be construed to constitute any expressed or implied warranty or guarantee, nor shall it constitute a contract of employment. The City of Atwater assumes no responsibility beyond the general accuracy of the document, nor does it assume responsibility for any errors or omissions in the information contained herein. The contents of this specification may be modified or revoked without notice.
Rev. 08-14-17