CITY OF CAMARILLO
PROFESSIONAL SERVICES AGREEMENT
With
KIMLEY-HORN AND ASSOCIATES, INC.
For
ST-5006 PLEASANT VALLEY ROAD BIKE LANES
DESIGN SERVICES
CAM #4826-7554-4064 v5 / Form Approved January 2018
CC Agreement No. 2019-53
TABLE OF CONTENTS
Page No.
Section 1. Term of Agreement ; ! i.... 1
Section 2. Scope and Performance of Services 1
Section 3. Additlorial Services and Changes in Services. 2 Section 4. Familiarity with Services and Site , ^ 2
Section 5. Compensation and Payment 2
Section 6. Required Documentation Prior to Performance....;.... .3 Section 7. Time of Performance; Excusable Delays; Extensions 3 Section 8. Cooperation by Local Agency : 4
Section 9. Project Documents .-. 4
Section 10. Confidential Information; Release of Information... 4 Section 11. Corisultant's Books and Records ...5
Section 12. Status of Consultant ,...' 5
Section 13. Compliance with Applicable Laws 6
Section 14. Unauthorized Aliens : 6
Section 15. Conflicts of Interest 6
Section 16. Indemnification 7
Section 17. Insurance. 8
s
Section 18. Assignment.... 9
Section 19. Default; Limitations on Liability 9
Section 20. Termination of Agreement.. 9
Section 21. Notices l". 10
Section 22. General Provisions , ;...^ 10
Section 23. Federal Aid Contract Requirements 11
Exhibit A - Scope Of Services 1 ; A-1
Exhibit B- Key Personnel & Compensation B-1
Exhibit C- Insurance , C-1
Exhibit D - Required Federal Aid ^ A&E Contract Language D-1 CAM #4826-7554-4064 v5 / Form Approved January 2018
CO Agreement No. 2019-53
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is effective as of July 24, 2019 ("Effective Date"), and is between the City of Camariljo, a California municipal corporation and general law city ("Local Agency") and Kimley-Horn and Associates, Inc., a North Carolina corporation ("Consultant").
Section 1. Term of Agreement.
/
Subject to the provisions of Section 2Q (Termination of Agreement), the term of.this Agreement will be for a period commencing on the Effective Date and wiil terminate on July 24, 2021.
Section 2. Scope and Performance of Services. .
2.1 Consultant agrees to perform the services set forth in ExhjbitA (Scope of Services), which is made a part of this Agreement.
2.2 Consultant will furnish all of the labor, technical, administrative, professional and other personnel, all supplies and rriaterials, equipment, printing, vehicles, transportation, office space and facilities, and all tests, testing and analyses, calculations, and all other means whatsoever, except as otherwise expressly specified in this Agreement, necessary to perform the services required of Cofisultant under this Agreement.
2.3 Consultant's designated representative(s) who are authorized to act on its behalf and to make all decisions in connection with the performance of services under this Agreement are listed in Exhibit B (Key Personnel & Compensation), which is made a part of this Agreement.
2.4 Consultant must rhake every reasonable effort to maintain the stability and continuity of Consultant's key personnel and subcontractors, ifany, listed in Exhibit B to perform the services requjred under this Agreement. Consultant must notify Local Agency and obtain Local Agency's written approval with respect of any changes in key personnel prior to the performance of any services by replacement personnel.
2.5 Consultant .must obtain Local Agency's prior written approval before utilizing any subcontractors to perform any services under this Agreement. This written approval must include the identity of the subcontractor and the term's of compensation.
2.6 Consultant represents that it has the qualifications, experience and facilities necessary to properly perform the services required under this Agreement in a thorough, competent and -professional manner. Consultant will at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described in this Agreement.
In meeting itS'obligations under this Agreement, Consultant must employ, at a minimum, generaily accepted standards and practices utilized by persons engaged in providing services similar to thpse required of Consultant under this Agreement.
2.7 Local Agency may Inspect and accept or reject any of Consultant's work, under this Agreement, either during performance or when completed. Acceptance of any of •Consultant's work by Local Agency will not constitute a waiver of any of the provisions of this Agreement.
2.8 The Consultant must maintain any work site in the Local Agency in a safe condition, free of hazards to persons and property resulting from its operations.
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Section 3. Additional Services and Changes in Services.
3.1 Consultant will not be compensated for any services rendered in connection with its performance of this Agreement that are In addition to or outside of those set forth In the Scope of Services or otherwise required by this Agreement, unless such additional services are authorized in advance and in writing by Local Agency.
3.2 If Consultant believes that additional services are needed to complete the Scope of Services, Consultant will provide the City Manager with written notification describing the proposed additional services, the reasons for such services, and a detailed proposal regarding cost.
3.3 Local Agency may order changes to the Scope of Services, consisting of additions, deletions, or other revisions, and the compensation to be paid Consultant will be adjusted accordingly. All such changes must be authorized In writing, and executed by Consultant and Local Agency. The cost or credit to Local Agency resulting from changes in the services will be determined by the written agreement between the parties.
Section 4. Familiarity with Services and Site.
4.1 By executing this Agreement, Consultant represents that Consultant:
(a) has thoroughly investigated and considered the Scope of Services to be performed;
(b) has carefully considered how the services should be performed; (c) understands the facilities, difficulties, and restrictions attending performance of the services'Under this Agreement; and
(d) possesses all licenses required under local, state or federal law to perform the services contemplated by this Agreement, and will maintain all required licenses during the performance of this Agreement.
4.2 If services involve work upon any site. Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commencing its services.
Should Consultant discover any latent or unknown conditions that may materially affect the performance of services. Consultant will immediately inform Local Agency of such fact and will not proceed except at Consultant's own risk until written instructions are received from Local Agency.
Section 5. Compensation and Payment.
5.1 Subject to any limitations set forth in this Agreement, Local Agency agrees to pay Consultant on the basis of the hourly rates and fees as specified in Exhibit B (Key Personnel & Compensation). The total compensation, including reimbursement for actual expenses, may not exceed the amount set forth in Exhibit B. unless additional compensation is approved in writing by Local Agency.
'5.2 The use of subcpnsultants will not be considered a reimbursable expense, and such costs • must be applied towards the approved budgeted amount.
5.3 Each month during the term of this Agreement, Consultant must furnish Local Agency with an original invoice for all services performed and expenses incurred during the preceding CAM #4826-7554-4064 v5 / Form Approved January 2018 2
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month in accordance with the fee schedule set forth In Exhibit B. The Invoice must detail charges by the following categories: labor (by subcategory), reimbursable costs, subcontractor contracts and miscellaneous expenses. The Invoice must list, as applicable,' the hours worked and hourly rates for each personnel category, the tasks performed, the percentage of the task completed during the billing period, the cumulative percentage completed for each task, and the total cost ofthe services. If applicable, the invoice must also provide a budget summary including the total amounts previously invoiced and paid, the current invoice amount and the budget remaining.
5.4 Local Agency will, review each Invoice submitted by Consultant to determine whether the work performed and expenses incurred are in compliance with this Agreement. In the event that no charges or expenses are disputed, the Invoice will be approved and paid. In the event any charges or expenses are disputed by Local Agency, the Invoice will be returned by Local Agency to Consultant for correction and resubmlsslon.
5.5 Except as to any charges for work performed or expenses Incurred by Corisultant that are disputed by Local Agency, Local Agency will cause Consultant to be paid within 30 days of receipt of Consultant's Invoice. . ^I
5.6 Payment to Consultant for services performed under this Agreement rhay not be deemed to waive any defects In the services performed by Consultant, even If such defects were known to Local Agency at the time of payment.
5.7 Local Agency reserves the right to withhold future payment to Consultant If any aspect of the Consultant's work Is found substantially Inadequate.
Section 6. Required Documentation Prior to Performance.
8.1 Consultant may not perform any services under this Agreement until:
(a) Consultant furnishes proof of insurance as required under Exhibit C:
(b) Consultant provides Local Agency with a Taxpayer Identification Number; (c) Consultant obtains a City business tax certificate and license,, if applicable, and provldesproof of compliance; and '
- I ■
(d) Locai Agency gives Consultant a written notice to proceed.
6.2 The Local Agency will have no obligation to pay for any services rendered by Consultant In advance of receiving written authorization to proceed, and Consultant acknowledges that any such services are at Consultant's own risk.
Section 7. Time of Performance: Excusable Delays; Extensions.
7.1 Consultant must adhere to all schedules and deadlines set forth in this Agreement.
7.2 Consultant will not be liable for damages, including liquidated damages, if any, caused by delay In performance or failure to perform due to causes beyond the control of Consultant.
Such causes Include, but are not limited to, acts of God, acts of terrorism, acts of federal, state or local governments, acts of Local Agency, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather.
7.3 If Consultant Is delayed by any cause beyond Consultant's control, Local Agency may grant, but is not required to, a time extension for the completion of services. If delay CAM #4826-7554-4064 v5 / Form Approved January 2016 3
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occurs, Consultant must notify Local Agency within 48 hours, in writing, of the cause and , the extent of the delay and how such delay interferes with Consultant's performance of services.
Section 8. Cooperation bv Local Aaencv.
All public Information, data, reports, records, and maps as are existing and available to Local Agency as public records, and which are necessary for carrying out the Scope of Services will be furnished to Consultant in every reasonable way to facilitate, without undue delay, the services to be performed under this Agreement.
Section 9. Project Documents.
9.1 All original computer programs, data, designs, drawings, files, maps, memoranda, models, notes, photographs, reports, studies, surveys and other documents (collectively, "Project Documents") prepared, developed or discovered by Consultant in the course of providing services under this Agreement will become the sole property of Local Agency and may be used, reused or otherwise disposed of by Local Agency without the permission of Consultant. Consultant will take such steps as are necessary to perfect or protect the ownership interest of Local Agency In such Project Documents. Upon completion, expiration or termination of this Agreement or upon request by Local Agency, Consultant must turn over to Local Agency all such original Project Documents in its possession; provided, however, that Consultant may retain copies of Project Documents. Local Agency acknowledges and agrees that use of Consultant's completed work product, for purposes other than Identified in this Agreement, or use of incomplete work product, is at Local n Agency's own risk. If necessary, Consultant agrees to execute all appropriate documents to assign to Local Agency the copyright or Intellectual property rights to the Project Documents created pursuant to this Agreement.
9.2 Except as necessary for the performance of services under this Agreement, no Project Documents prepared under this Agreement, will be released by Consultant to any other person or entity without Local Agency's prior written approval.
Section 10. Confidential Information: Release of Information. lOil All information gained or work product produced by Consultant in performance of this Agreement will be considered confidential, unless such Information is in the public domain or already known to Consultant. Consultant may not release or disclose any such information or work product to persons or entitles other than Local Agency without prior written authorizatlon from the City Manager, except as may be required by law.
10.2 Consultant, Its officers, employees, or agents, may not, without prior written authorization from the City Manager or unless requested by the City Attorney of Local Agency, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the services performed under this Agreement. Response to a subpoena or court order will not be considered "voluntary" provided Consultant gives Local Agency notice of such court order or subpoena.
10.3 If Consultant, or any officer, employee, or agent of Consultant, provides any information or work product (Including Project Documents) in violation of this Agreement, then Local Agency will have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys fees, caused by or incurred as a result of Consultant's conduct.
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10.4 Consultant must promptly notify Local Agency should Consultant, Its officers, employees, or agents be served with any summons, complaint, subpoena, notice of deposition, request for documents. Interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the services performed under this Agreement. Local Agency retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding.
Consultant agrees to cooperate fully with Local Agency and to provide Local Agency with the opportunity to review any response to discovery requests provided by Consultant.
However, this right to review any such response does not imply or mean the right by Local Agency to control, direct, or rewrite such response.
10.5 All media and press releases, including graphic display information, must be approved and distributed solely by Local Agency, unless otherwise agreed to in writing by Local Agency. All media interviews regarding the performance of services under this Agreement are prohibited unless expressly authorized by Local Agency.
Section 11. Consultant's Books and Records.
11.1 Consultant must maintain all documents and records demonstrating or relating to Consultant's performance of services under this Agreement, including ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to Local Agency under this Agreement. All financial documents or records must be maintained in accordance with generally accepted accounting principles and all other documents must be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant under this Agreement. All such documents or records must be maintained for at least three years following the final payment under this Agreement.
11.2 Any and all records or documents required to be maintained by this section must be made available for inspection, audit and copying, at any time during regular business hours, upon written request by Local Agency or its designated representative. Copies of such documents or records must be provided directly to Local Agency for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records must be made available at Consultant's address indicated for receipt of notices in this Agreement.
11.3 Where Local Agency has reason to believe that any of the documents or records required to be maintained by this section may be lost or discarded due to dissolution or termination of Consultant's business, Local Agency may, by written request, require that custody of such documents or records be given to a person or entity mutually agreed upon and that such documents and records thereafter be maintained by such person or entity at Consultant's expense. Access to such documents and records must be granted to Local Agency, as well as to its successors-in-interest and authorized representatives.
Section 12. Status of Consultant.
12.1 Consultant is and will at all times remain a wholly independent contractor and not an officer or employee of Local Agency. Consultant has no authority to bind Local Agency in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against Local Agency, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by Local Agency.
12.2 The personnel performing the services under this Agreement on behalf of Consultant will CAM #4826-7554-4064 v5 / Form Approved January 2018 5
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at all times be under Consultant's exclusive direction and control. Neither Local Agency, nor any elected or appointed boards, officers, officials, employees or agents of Local Agency, will have control over the conduct of Consultant or any of Consultant's officers, employees or agents, except as provided in this Agreement. Consultant agrees that it will not at any time or in any manner represent that Consultant or any of Consultant's officers, employees or agents are in any manner officials, officers, or employees of Local Agency.
12.3 Neither Consultant, nor any of Consultant's officers, employees or agents, will obtain any rights to retirement, health care or any other benefits which may otherwise accrue to Local Agency's employees. Consultant expressly waives any claim to any such rights or benefits.
Section 13. Compliance with ADplicable Laws.
13.1 In General. Consultant must use the standard of care in its profession to keep itself informed of and comply with all federal', state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement that apply to the services performed by Consultant.
13.2 Professional Licenses and Approvals. Consultant agrees that it will, at its sole cost and expense, obtain and maintain in effect at all times during the term of this Agreement any licenses, permits, insurance and approvals that are legally required for Consultant to practice its profession.
13.3 Employment Laws. Consultant agrees to comply with all applicable federal and state employment laws including those that relate to minimum hours arid wages, occupational health and safety, and workers compensation insurance. Consultant further represents that it is an equal opportunity employer and in performing services under this Agreement agrees to comply with all applicable federal and state laws governing equal opportunity employment, and further agrees that it wi|l not discriminate in the employment of persons to perform services under this Agreement on the basis of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity,,gender expression, age, or sexual orientation of any such person, except as may be permitted by California Government Code section 12940.
Section'14. Unauthorized Aliens.
Consultant agrees to comply with all of the applicable provisions of the Federal Immigration and Nationality Act (8 U.S.C. § 1101 and following), as it may be amended, and further agrees not to employ unauthorized aliens as-defined under the Act. Should Consultant employ any unauthorized aliens for the performance of any work or services covered by this Agreement, and should any liability or sanctions be Imposed against Local Agency for the use of unauthorized aliens. Consultant agrees to reimburse Local Agency for the amount of all such liabilities or sanctions imposed, together with any and all related costs, including attorneys' fees, incurred by Local Agency.
Section 15. Conflicts of Interest.
15.1 Consultant covenants that neither Consultant, nor any officer, principal or employee of its firm, has or will acquire any interest, directly or Indirectly, that would conflict in any manner with the interests of Local Agency or that would in any way hinder Consultant's performance of services under this Agreement. Consultant's attention Is directed to the CAM #4826-7554-4064 v5 / Form Approved January 2018 6
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conflict of interest rules applicable to governmental decision-making contained in the Political Reform Act (California Government Code Section 87100 and following) and its implementing regulations (California Code of Regulations, Title 2, Section 18700 and following), and California Government Code section 1090.
15.2 Consultant covenants that neither Consultant, nor any officer, principal or employee of its firm will make, participate in the making, or in any way attempt to use the position of Consultant to influence any decision of the Local Agency In which Consultant knows or has reason to know that Consultant, or any officer, principal or employee of Consultant has any of the financial interests listed in Government Code section 87103.
15.3 If Consultant discovers that it has employed a person with a direct or Indirect Interest that would conflict with its performance of this Agreement, Consultant must promptly disclose the relationship to Local Agency and take such action as Local Agency may direct to remedy the conflict.
15.4 Local Agency understands and acknowledges that Consultant Is, as of the Effective Date, independently Involved in the performance of non-related services for other governmental agencies and private parties. Consultant represents that, except as otherwise disclosed to Local Agency, it is unaware of any stated position of Local Agency relative to these projects. Any future position of Local Agency on these projects will not be considered a conflict of interest for purposes^ of this section.
Section 16. Indemnification.
16.1 Consultant agrees that It will, to the fullest extent permitted by law, defend, indemnify, and hold harmless Local Agency from all Services Claims and Operations Claims (each defined below) related to the performance by Consultant of this Agreement as provided in this section. Consultant acknowledges that Local Agency would not enter into this Agreement in the absence of Consultant's commitment to defend, indemnify, and hold harmless Local Agency as set forth in this section.
16.2 For the purposes of this section, "Local Agency" Includes Local Agency's officers, officials, employees, agents and volunteers, and "Consultant" Includes Consultant's officers, officials, employees, agents and subcontractors and any other persons for whom Consultant iS'legally responsible.
16.3 With respect to the performance of professional services under this Agreement where the law establishes a professional standard of care for such services. Consultant agrees to Indemnify,, and hold harmless Local Agency from and against all liabilities, damages, losses, and costs, including but not limited to reimbursement of reasonable attorney's fees and all other costs of defense, to the extent caused by the negligence, recklessness, or willful misconduct of Consultant (collectively, "Services Claims").
16.4 With respect to the acts and operations of Consultant under this Agreement other than the performarice of professional services. Consultant agrees to defend, indemnify, and hold harmless Local Agency from and against any and all claims, liabilities, damages, losses, and costs, including but not limited to reasonable attorney's fees and all other costs of defense, to the extent caused, in whole or in part, by the negligence, recklessness, or willful misconduct of Consultant, and excepting only those claims, damages, liabilities, losses, and costs caused by Local Agency's sole negligence or willful misconduct (collectively, "Operations Claims").
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16.5 Consultant must notify Local Agency within five days of receipt of notice of any Operations Claims or Services Claims made or legal action initiated that arises out of or pertains to Consultant's performance of services under this Agreement.
16.8 Consultant's duty to defend Operations Claims is a separate and distinct obligation from Consultant's duty to indemnify Local Agency for any Operations Claims. With respect to Operations Claims, Consultant is obligated to defend'Local Agency in all legal, equitable, administrative, or special proceedings, with counsel reasonably approved by Local Agency, immediately upon tender to Consultant-of an Operations Claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination that persons other than Consultant are responsible for the Operations Claim does not relieve Consultant from Its separate and distinct obligation to defend under this section. The obligation to defend extends through final judgment, Including exhaustion of any appeals.
16.7 Consultant agrees that settlement of any Operations or Services Claim against Local Agency requires the consent of Local Agency. Local Agency agrees that its consent will not be unreasonably withheld provided that Consultant is financially able (based on demonstrated assets including insurance) to fulfill its obligation to indemnify Local Agency for the costs of any such settlement as required under this Agreement.
16.8 The insurance required to be maintained by Consultant under this Agreement is intended to ensure Consultant's obligations under this section, but the limits of such insurance do not limit the liability of Consultant.
16.9 Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each subcontractor or any other person or entity Involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations from others as required, Consultant will be fully responsible for all obligations under this section. Local Agency's failure to monitor compliance with this requirement imposes no additional obligations on Local Agency and will' in no way act as a waiver of any rights under this Agreement.
16.10 The parties, acknowledge and agree that design professionals are required to defend and indemnify the Local Agency only to the extent permitted by Civil Code section 2782.8, which allows for claims only to the extent that they arise out of, pertain to, or relate to the negligence, recklessness, or willfulmisconduct of the design professional, and also places limitations on the costs of defense that may be charged to a design professional. The term "design professional," is defined in Section 2782.8, and includes licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors and the business entities that offer such services in accordance with the applicable provisions of the Business and Professions Code. The parties further acknowledge and agree that the provisioris of this Section 16 are to be interpreted and applied to the fullest extent permitted by Civil Code section 2782.8.
16.11 The provisions of this section will survive the expiration or earlier termination of this Agreement in accordance with the applicable provisions of Exhibit C (Insurance).
Section 17. insurance.
Consultant agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance coverages listed in Exhibit C (Insurance), which is made a part of this Agreement.
All insurance policies are subject to approval by Local Agency as to form and content. These CAM #4826-7554-4064 v5 / Form Approved January 2018 8
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requirements are subject to amendment or waiver if so approved In writing by the City Manager or City Attorney.
Section 18. Assignment.
The expertise and experience of Consultant are material considerations for this Agreement. Local Agency has an Interest in the qualifications of and capability of the persons and entities that will fuifiii the duties and obligations imposed upon Consultant under this Agreement, in recognition of that interest, Consultant may not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Consultant's duties or obligations under this Agreement without the prior written consent of Local Agency, which may be withheld in the Local Agency's sole discretion. Any attempted assignment will be null and void, and will constitute a material breach of this Agreement entitling Local Agency to any and all remedies at law or in equity, including summary termination of this Agreement.
Section 19. Default; Limitations on Llabllltv.
19.1 In the event that Consultant Is In default under the terms of this Agreement, Local Agency will have no obligation or duty to continue compensating Consultant for any services performed after Local Agency provides written notice to Consultant of such default.
19.2 Consultant agrees that no Local Agency official, officer, employee or agent will be personally liable to Consultant in the event of any default or breach of Local Agency, or for any amount which may become due to Consultant, or for any obligations directly or indirectly incurred under this Agreement.
19.3 Local Agency's liability under this Agreement is limited to payment of Consultant in accordance with the terms of this Agreement and excludes any liabijity whatsoever for consequential or indirect damages even if such damages are foreseeable.
Section 20. Termination of Agreement.
20.1 Local Agency may terminate this Agreement, with or without cause, at any time by written notice of termination to Consultant. In the event such notice is given, Consultant must cease immediately all work and services in progress.
20.2 Consultant may terminate this Agreement at any time upon 30 days' prior written notice of termination to Local Agency.
20.3 Upon termination of this Agreement by either Consultant or Local Agency, all property belonging to Local Agency that is In Consultant's possession must be returned to Local Agency. Consultant must promptly deliver to Local Agency a final inyoice for all outstanding services performed and expenses incurred by Consultant as of the date of termination. Compensation for work in progress not based on an hourly rate will be prorated based on the percentage of work completed as of the date of termination.
20.4 Consultant acknowledges Local Agency's rights to terminate this Agreement as provided in this section, and hereby waives any and all claims for damages that might otherwise arise from Local Agency's termination of this Agreement.
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Section 21. Notices.
21.1 All written notices required or permitted to be given under this Agreement will be deemed made when received by the other party at its respective address as follows:
To Local Agency: City of Camarillo
601 Carmen Drive
City of Camarillo, CA 93011
Attention: Ken Matsuoka
(Tel.) (805)388-5340
(Fax) (805)388-5318
E-Mail [email protected]
To Consultant: Kimley-Horn and Associates, Inc.
11919 Foundation Place, Suite 200
Gold River, CA 95670
Attention: Robert Blume
(Tel.) (916)859-3606
E-mail [email protected]
21.2 Notice will be deemed effective on the date personally delivered or electronically transmitted by facsimile. If the notice is mailed, notice will be deemed given three days after deposit of the same in the custody of the United States Postal Service, postage prepaid, for first class delivery, or upon delivery if using a major courier service with tracking capabilities.
21.3 Any party may change its notice information by giving notice to the other party in compliance with this section.
Section 22. General Provisions.
22.1 Authority to Execute; Counterparts. Each party represents and warrants that all necessary action has been taken by such party to authorize the undersigned to execute this Agreement and to bind it to the performance of its obligations hereunder. This Agreement may be executed In several counterparts, each of which will constitute one and the same instrument and will become binding upon'the parties when at least one copy has been signed by both parties.
22.2 Entire Agreement. This Agreement, including the attached Exhibits A through D. is the entire, complete, final'and exclusive expression of the parties with respect to the matters addressed in this Agreement and supersedes all other agreements or understandings, whether oral or written, between Consultant and Local Agency prior to the execution of this Agreement.
22.3 Binding Effect. This Agreement is binding upon the heirs, executors, administrators, successors and assigns of the parties.
22.4 Wlodiflcatlon of Agreement. No amendment to or modification of this Agreement will be valid unless made in writing and approved by Consultant and by the City Council or City Manager, as applicable. The parties agree that this requirement for written modifications CAM #4826-7554-4064 v5 / Form Approved January 2018 10
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cannot be waived and that any attempted waiver will be void.
22.5 Electronic Signatures; Counterparts. This Agreement and any amendment will be considered executed when the signature page of a party is delivered by facsimiie or other electronic transmission. Such eiectronic signatures wiil have the same effect as an original signature. This Agreement may be executed in multiple counterparts.
22.6 Waiver. Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement will not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement will not constitute a waiver of any other provision, or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by Local Agency of any services by Consuitant wiii not constitute a waiver of any of the provisions of this Agreement.
22.7 interpretation. This Agreement will be interpreted, construed and governed according to the iaws of the State of California. Each party has had the opportunity to review this Agreement with legal .counsel. The Agreement will be construed simply, as a whole, and in accordance with its fair meaning. It wiil not be interpreted strictly for or against either party.
22.8 Severability. If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement will not be affected and the Agreement wiil be read and construed without the invaiid, void or unenforceable provision.
22.9 Venue. In the event of litigation between the parties, venue in will be exclusively in a state court in the County of Ventura.
Section 23. Federal Aid Contract Requirements.
The Consultant shall comply with ail federal aid contract requirements and complete ail forms included in Exhibit D. which are'incorporated into this contract. In the event that any federal aid requirement conflicts with the terms of this contract, the federal requirement shall prevail. [Signatures on the following page.]
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THE UNDERSIGNED AUTHORIZED REPRESENTATIVES OF the parties hereby execute this Agreement as follows;
CTYO
David J. Norman, City Manager
ATTEST:
Jgffrie Madland, City Clerk
APPROVED AS TO FORM:
Brian A. Pierik, City Attorney
KIMLEY-HORN AND ASSOCIATES, INC.
ii-h
Sri Chakravarthy, Assistant Secretary
CA- \P£
Robert Blume, Vice President
034018 12/31/2019
Camarillo Business Tax Certificate Number Expiration Date CAM #4826-7554-4064 v5 / Form Approved January 2018 12
EXHIBIT A
SCOPE OF SERVICES
[Attached]
CAM #4826-7554-4064 v5 / Form Approved January 2018 A-1 CO Agreement No. 2019-53
EXHIBIT A
Kimley-Horn and Associates, Inc.
Pleasant Valley Road Bike Lanes - City of Camarlllo
Scope of Work
Task 1.1: Work Plan and Schedule ($8,303.67}
Kimley-Horn will develop a work plan that identifies the following:
• A Project Development Team (PDT) outlining individual roles and responsibilities • Project expectations and goals; milestones for major activities and deliverables • Specific design Issues and constraints based on supporting tasks and preliminary layout Kimley-Horn will prepare a project schedule (in Microsoft Project) within the first two weeks following a notice to proceed (NTP).
Kimley-Horn will prepare monthly project reports addressing the progress of work. Monthly progress reports will provide current information regarding the project schedule and complete deliverables, problems encountered that may affect schedule, budget or work products and anticipated work, action items, and identify activities for the following month.
Kimley-Horn will attend up to two (2) site visit walks with Staff to discuss the project.
Kimley-Horn will plan for and provide Quality Control/Quality Assurance (QC/QA), which consists of documenting the monthly progress report, our process whereby deliverables are checked prior to formal submission, and tracking and filing project-related correspondence and memorandum. The QC/QA Manager will also monitor and review project activities and deliverable schedules.
Deliverables:
• Attend up to three PDT meetings, with related coordination and agenda preparation, meeting minutes, and action item lists
• Baseline progress schedule, monthly progress reports, and progress schedule updates (one electronic file [Adobe PDF] copy and one hard copy) • Attend up to two site visit walks
Task 1.2: Kick-off Meeting ($4,856.97)
Kimley-Horn will schedule and lead a project kick-off meeting within two weeks of NTP to discuss project details with the City. We will prepare the agenda, meeting minutes, and follow- up with action items requested from the meeting.
Deliverables:
• Attend a Kickoff meeting, with related coordination and agenda preparation, meeting minutes, and action item lists
CO Agreement No. 2019-53
EXHIBIT A
Task 13: Data Collection ($4,178.20)
Kimley-Horn will collect and selected review readily available data from the City/County/ consisting of GIS files, as-builts, traffic data', grant applications, existing cross-sections developed from the proposal, geotechnical studies, master plans, and other related supporting information for the project.
Deliverables:
• List of required data from the City
• List of data collected
Task 1.4: Surveying ($52,590.96)
Horizontal & Vertical Survey Control Network
Wagner Engineering & Survey (WES) will establish the primary horizontal and vertical controls for this project. The horizontal datum is NAD 83, CCS Zone 5, 2010 Epoch. The vertical datum Is North American Vertical Datum of 1988 (NAVD88).
Aerial Control and Mapping
Aerial mapping will be produced along the length of the Pleasant Valley Road between Las Posas Road and E. 5*^ Street. Ten (10) aerial.tergets will be set and survey controlled to enable an aerial flight to produce 1" = 40' aerial mapping with one-foot contour intervals. The area to be mapped will be all the road right-of-way plus 75' beyond the edge of roadvyay on. both sides.
RIght-of-Way (ROW)
Centerllne monuments at streets intersections will be surveyed. Street centerline will be established and will be used to produce the ROW lines. Private property boundaries adjoining the ROW will be plotted based on record maps and cadastral information only.
Supplemental Topographic Survey
Ground detailed topographic survey for improvements needed for design purposes will be performed to supplement aerial topo map. The survey will include utilities (surface only), curbs, gutters sidewalks, utility vaults, overhead power and communication conduits, drainage structures, guard rails, fence.and wall lines, manholes, water meters, hydrants, cleanouts, valves, poles, trees, signage and striping.
Deliverables
• Aerial topographic mapping at a scale of 1" = 40' with 1-foot contour intervals in AutoCAD format.
• Aerial mapping DTM, with orthophotos.
• Topo map of supplemental survey in AutoCAD format.
Task 1.5: Right of Way Services ($100,615.34)
WES can assist with the preparations of plats and legal descriptions for any easements nee'ded for this project.
CO Agreement No. 2019-53
EXHIBIT A
Temporary Construction Easements will be required to complete the construction of the project.
We are Including Harnner Jewel and Associates (HJA) on the team to provide these services. We assume that there are no permanent acquisitions needed for the project, but that Temporary Construction Easements may be needed for each of the parcels along the road. The parcels are as follows:
North side of Pleasant Vallev Road
1. 229-0-020-145 - MF Dauly Springville PTSP
2. 229-0-020-155 — Camarillo Sanitary District
3. 229-0-020rl05 - Pleasant Valley East LLC
4. 229-0-020-095 — Arizmentdi Mark Hunter
5. 229-0-020-050 — Beltramo Family Trust
6. 229^0-020-060 — Hansen J Woodford Family Partnership*
7. 229-0-020-080 - Gabrie Daniel
8. 229-0-020-120 — Hansen J Woodford Family Partnership*
9. 229-0-020-130— Hansen J Woodford Family Partnership*
10. 229-0-030-015 - Marathon Land Inc*
11. 229-0-030-065 — International Paper Co
12. 229^0-030-105 - Marathon Land Inc*
South side of Pleasant-Vallev Road
13. 230-0-061-045 - Abe Helen N Trust
14. 230-0-061-055 — Mitsuuchi John K and Nobuko Trust ''
15. 230-0-061-010 — Daily Richard N Trust / Daily Richard N
16., 230-0-061-090 — Daily Family Trust
17. 230-0-052-150 — Evan Gordon E Trust
*common ownerships for multiple parcels
In order to acquire the needed property rights, based on federal funding and Caltrans rules and regulations, the properties to be acquired will, need to be appraised or .valued. Based on the information provided, it'appears that the needed temporary construction acquisitions are of nominal value and would have a-value under $10,000 per parcel. Given this information, and assuming that owners will be cooperative in negotiations, and no condemnation proceedings will become necessary, we recommend using Waiver Valuations rather than formal appraisal and appraisal review semces,,Utilizingourin-house valuation service will reduce total costs and time for appraisal services. However, if we are not able to reach amicable settlement with the owners, a formal appraisal will be needed before any condemnation and additional budget will be needed. This approach assumes that no structures will be impacted and that easement areas will be designed so property owners do not lose any access to their properties during construction. .
CC Agreement No. 2019-53
EXHIBIT A
Once the waiver valuation process is complete and the valuations are pre-approved by you and the City, we would then prepare offer packages for each owner that will include an offer letter.
Valuation Summary Statement, proposed Right of Way Agreement and Deed. These documents would be presented to you for your review and pre-approval prior to presenting offers to property owners. After offer presentation, we would pursue agreements with each owner to finalize the right of way transfers. As owner-signed agreeitients are obtained, we would process all documents for necessary City approvals, execution, and payments to property owners. No escrows or title insurance would be utilized or obtained on temporary rights. We will work w|th the City to facilitate and complete the right of way acquisition process.
To assist you with these services, we propose to bill monthly in accordance with the terms and provisions of our current Time and Materials Fee Schedule, a copy of which is attached. We would work closely with you and your project team to ensure that we are investing our efforts In accordance with your needs .and preferences. In any case where one is working with people rather than completing an independently controllable task, it is always difficult to speculate in advance the specific amount of time that may be required to cbrnplete our goals. Our efforts are largely impacted ,by the level of accessibility and responsiveness of the property owners from whorh we seek agreement. Obviously, sorhe will require much more time than others in cpming to terms and finalizing documents required for the purposes of the project. However, for your budgetary and contractual purposes, we recommend an allocation of 735 hours of HJA staff time and a budget for the work described herein.
Task 1.6a: Geotechnical Investigation ($37,340.50)
Based on our understanding of the project, we propose the following work scope: permitting, field exploration, laboratory testing, and geotechnical data summary.
Permitting and Project Initiation
We have assumed that the City will provide a no-fee encroachment permit for work within the PVR right-of-way (geotechnical drilling and/or ADL sampling). If the geotechnical drilling is performed within the farm haul roads rather than in the PVR travelled way, we assume the City will coordinate access at no cost to Oakridge Geoscience, Inc. (OGI). We also have assumed a permit will be required from the Ventura County Watershed Protection District for infiltration testing within the drainage ditch.
Prior to field exploration, OGI will perform a site reconnaissance to locate and mark the exploration locations.(drill holes and ADL test sites) for coordination with Underground Service Alert. OGI will not be responsible for mislpcated or unlocated utilities. We have included a task for a private utility locator to locate utilities within PVR if the geotechnical drilling explorations are performed in the roadway (as required by our drilling subcontractor).
CC Agreement No. 2019-53
EXHIBIT A
Geotechnical Field Exploration
Based on the length of the proposed bike lane widening area, we will advance up to six explorations {three on each side of the widening area) to depths of about 10 feet or refusal, whichever occurs first. The drill holes will be advanced by S/G Drilling of Lompoc, California. If the drill holes are performed in PVR, the drilling wiil be conducted under lane-closure provided by Total Barricade Service of Oxnard. Additionally, we will perform a visual pavement evaluation of the existing PVR pavement along the project alignment as part of the field study.
Relatively undisturbed and bulk samples will be collected from each drill hole for laboratory -testing. Our field personal wiil log the recovered samples In general accordance with ASTM D2488 for visual soil classification. If groundwater or seepage is encountered during excavation.
It will be measured and recorded on the drill hole log.
Following completion at each location, drill holes advanced within PVR will be backfilled with the cuttings mixed with Portland to create soil cement and the pavement patched with quickset cement. If the drill holes advanced within the haul roads will be backfilled with cuttings and tamped. We anticipate two field days to complete the drill holes, assuming encroachment permit working hours of 9AM to 3PM.
Geotechnical Laboratory Testing
We will perform geotechnical laboratory testing on the sampled soil materials. The laboratory testing program is expected to consist of moisture content,'classification (grainsize and/or plasticity), shear strength, and R-value.
Infiltration Testing
We will perform borehole or test pit infiltration tests at two locations within the drainage ditch in accordance with Ventura County Technical Guidance Manual for Stormwater Quality Control Measures (2017). We anticipate the tests will be performed at a shallow depth of about two to four feet below grade!
Summary Report
Following completion of'the field exploration and testing, we will prepare a report that will summarize the following Information as,requested by the project designers:
• Summary of sOll types encountered In the exploration locations; • Geotechnical laboratory test results;
• Geotechnical recommendations for the concrete channel slope improvements and asphalt pavement improvements;
• Summary of pavement conditions based on observations; • Infiltration rates per County of Ventura Guidelines, and • Results of ADL testing.
CO Agreement No.' 2019-53
EXHIBIT A
An electronic draft copy (pdf) will be submitted for the draft report via email for review and comments. A pdf of the final report can be submitted within five working days of receiving comments.
Task 1.6b - Aerially Deposited Lead (AOL) Screenirig ($6,672.07) The PVR project is not a Caltrans roadway and Is not anticipated to be subject to Caltrans ADL sampling criteria (tests at 300-foot maximum spacings). On that basis, we propose to perform ADL testing at about 1,000-foot intervals (a total of seven locations) along the PVR widening alignment with sampling locations on both the north and south sides of road in the proposed widening area. We propose to conduct the ADL testing In hand-auger/power spade test holes conducted on the dirt area between the pavement and drainage ditch on the northern and southern sides of the road. The test holes will be advanced by one to two people out of the travelled way under "work ahead" type signage and delineators; we have not provided for lane closure traffic control for this work.
The ADL testing will be conducted at seven locations consistent with standard Caltrans sampling procedures (i.e., in test holes advanced to a depth of about two to three feet depending on depth of disturbance of proposed construction activities, sampling at three intervals - 1) 0 to %- foot, 2) Yi- to 1-foot, and 3) 1 to 3 feet. Samples will be transported to Fruit Growers Laboratory in Santa Paula forTotal Lead and pH testing. If Total Lead values exceed 80 parts per million, soluble lead testing will be performed on those samples (a maximum of seven samples) in accordance with Caltrans/DTSC requirements. We have assumed 21 total lead tests and seven samples tested for soluble lead. The ADL field and laboratory test data will be included in the project report for the widening project.
Task 1.7: 30% Design and Contact Utility Owners ($47,885.06) Contact Utility Owners
The Kimley-Horn team will coordinate with the City to identify utility agencies to send initial letters ("A" Letters) to request utility as-built information for the project location. Utility information will be incorporated into the project base mapping.
Kimley-Horn will continue with the utility notification process. Conflict letters ("B" Letters) will be sent out to the appropriate utility agencies to reflect the proposed improvements and assess the locations of their facilities as incorporated into the base mapping. Potential conflicts will be identified and follow-up coordination will be conducted to resolve the conflicts or provide for relocation. If necessary, new or revised service locations will be coordinated with the various utilities for electric and phone service. Notice to relocate letters ("C" Letters), if necessary, will be sent out to the appropriate utility agencies after final design is approved.
Deliverables:
• Revised Utility Base Map and Matrix
• Letters: "A". "B" and "C"
CO Agreement No. 2019-53
EXHIBIT A
30% Conceptual Design and OPCC
The Kjmley-Horn team will prepare up to four (4) schematic alternative layouts of the project limits. These features will show from a plan view and supporting typical sections e.g. right-of- way, private properties, grading limits, utilities, trees, driveways, roadway widening, culvert locations, drainage Improvements, HMA grind and overlay, pavement striping and signing. Each layout may have minor modifications, we have included the four alternatives below:
• Alternative 1: 4' Class II Bike Lane, with Open Ditch {both sides) • Alternative 2: 5' Class II Bike Lanes, with Open Ditch (both sides) • Alternative 3: 5' Class 11 Bike Lanes, Engineered Channel Wails with Open Ditch • Alternative 4: 5' Class II Bike Lanes, Engineered Channel Walls with Concrete Lined Bottom Ditch
Following review, we will walk the site with the City to discuss sensitive locations or areas that may need to extend or be modified. We will provide opinion on probable construction costs (OPCC) with each alternative.
Deliverables:
• Up to four alternative layouts, with up to one revision from City Staff • OPCC for each alternative
Task 2 - Plans and Specifications
Task 2.1: Preparation of Construction Documents (65%) ($86,180.67) 65% Design
The Kimley-Horn team will continue from the approved 30% conceptual design with the following plan sheets:
Title Sheet/General Notes/Key Map and Line Index
The Kimley-Horn team will prepare two (2) sheets a title sheet with a vicinity map, location map, utility company contacts, legend, and general notes for the project.
General Cross-Sections
The Kimley-Horn team will prepare two (2) sheets for typical sections consisting of roadway improvements, with structural pavement sections, variable widths, showing: drainage, roadway, utility impacts, cross slopes, curb and gutter, lane widths, and traveled way pavement materials.
Demolition and Utility Plans
The Kimley-Horn team will prepare three (3) sheets at r'=40' Horizontal Double Stacked for the project limits. Demolition and utility components will show the demolition, disposal, removal and/or relocation of observable structures, utilities, landscaping, signs, curbs, and gutters required to facilitate the propose design and roadway widening.
Street Improvement Plans
The Kimley-Horn team will prepare up to six (6) sheets for at 1"=40' Horizontal and r'=8' Vertical scale for the project limits. The improvements will include but not be limited to 7 CC Agreement No. 2019-53
EXHIBIT A
concrete improvements, curb and gutter, retaining walls, drainage improvements, driveway conforms, grading. Fine grading, spot grade elevations, and grade breaks will be shown on the profiles.
Construction Details
The Kimley-Horn team will prepare up to six (6) sheets for private property conforms at 1"=20' Horizontal Double Stacked. The details will include driveway conforms, tie-in locations, additional layout, grading, and spot grades to support the construction. Additional details for drainage treatments to support the grading layout and other various supporting infrastructure details associated with the project will be Included.
Drainage Improvement Plans
The KImley-Horn team will prepare four (4) sheets at 1" = 20' Horizontal and 1" - 4' Vertical scale for the project limits. The improvements will include but not be limited to drainage features, pipe layout, profiles, connections, culverts, details associated with drainage systems.
Subsurface Infiltration Plans
Kimley-Horn will prepare the subsurface infiltration plans within the areas defined by the testing. We will implement Ventura County Low Impact Development (LID) Best Management Practices (BMPs) utilizing the geotechnical infiltration testing results. We will then recommend the use of one or more of the following: bioswales, and bio-infiltration techniques to collect runoff and manage it. We will then prepare the grading design with vertical spot grade elevations. The following plans are anticipated for the project: Four (4) Sheets at 1" - 20', Double Stack.
In preparation for the plans we will prepare calculations to determine the first flush treatment flow rates and infiltration volumes for the affected watersheds using the Ventura County or similar methods to size each bioretention device. It is assumed that existing storm drain infrastructure and hydraulic calculations for these devices will not be required since if affected, they will be replaced with equivalent devices. Calculations will be available to the City upon request.
Subsurface Infiltration Detail
Kimley-Horn will prepare subsurface infiltration treatment details for the project including sub- drainage piping based on the geotechnical recommendations. Typical cross sections will be prepared to identify depth of soil, gravel underdrain system and any inlet or overflow system for the improvements. The following plans are anticipated for the project: One (1) Sheet.
Signage and Striping plans
The Kimley-Horn team will prepare six (6) plans at 1" = 40' (double stacked) for the project limits. Kimley-Horn will prepare the signage and striping plans per the latest edition of the California Manual of Traffic Control Devices (CA-MUTCD). These plans will implement various traffic control devices e.g. pavement stripes, markings, retroreflective markers, object markers, traffic signs. The plans will incorporate features to support all users, such as bike and pedestrian accommodations.
Retaining Wall Plans
The Kimley-Horn team will prepare up to three (3) sheets for various retaining walls encountered at 1" = 20' Horizontal and 1" = 4' Vertical scale for the project limits. The retaining CC Agreement No. 2019-53
EXHIBIT A
wall improvements will include but not be limited to retaining wall typical section, profile view including design height, drainage features, grading in front and behind walls, footing details etc.
Contour grading, fine grading, spot grade elevations, grade breaks for will be shown, along with utility conflicts.
Stormwater Pollution Prevention Plan with Erosion Control Plans Kimley-Horn will prepare a Storm Water Pollution Prevention Plan ("SWPPP") report required by the City, Ventura County, and the State Water Resource Control Board (SWRCB). This report will incorporate the Erosion Control Plan and details for the construction site. Preparation of a SWPPP requires risk calculations that will further define the SWPPP requirements. We will gather and post required documents to the State Water Boards Storm Water Multi-Application and Report Tracking System (SMARTS). This includes posting the Notice of Intent and SWPPP.
Kimley-Horn will prepare erosion control plans indicating proposed wet weather Best Management Practices (BMP's) to mitigate erosion from the project site to the storm drain systems. These plans show the City standard erosion control notes and locate suggested temporary BMP devices, staging areas, and other BMPs. The design will follow standard California Stormwater Quality Association (CASQA) BMP handbooks Engineers Opinion of Probable Construction Costs
Kimley-Horn will revise, compile, and prepare the Opinion of Probable Construction Costs (OPCC). Contingencies will be Included at the appropriate percentage.
Technical Specifications
Kimley-Horn will prepare the project special provisions as it will be assumed that the City will provide the "Front-End" documents, these will be based on the latest APWA Greenbook Specifications and 2015 Caltrans Standard Specifications.
Deliverables:
• 65% preliminary design plans, specifications, and OPCC • Completed Caltrans Encroachment Permit Application
Task 2.2: 95% Suhmittal ($70,720.80)
The Kimley-Horn team will prepare the 95% submlttal based on one round of consolidated, non-conflicting comments received from the City and Caltrans each during the previous 65% task. We will continue with our 65% submittal to develop the construction details and remaining design information for a complete plan set.
The Kimfey-Horn team will prepare a bid schedule from the Engineer's OPCC to be included In the bid documents. Our final opinion of probable construction cost estimate will be based upon, and in agreement with, the final items of work with estimated quantities.
The design deliverables will Include: Providing final improvement plans along with special provisions, and a complete OPCC estimate. We will wet seal stamped and signed by a licensed California Civil Engineer and Traffic Engineer for any submittals to Caltrans. In addition, we will provide a comment response matrix on how we are addressing both Caltrans' and City comments.
CC Agreement No. 2019-53
EXHIBIT A
Deliverables:
• 95% Construction Documents; Plans, specifications, and OPCC • Comment response matrix
Task 2.3: Final Submittal ($25,485.17)
KImley-Horn will provide the fol!o\wing design deliverables: final improvement Plans on Mylar ready for advertising and bidding, along with final special provisions (specifications), and a complete Engineer's OPCC, all wet seal stamped and signed by a licensed California Civil Engineer and Traffic Engineer. Final plans will be submitted on Mylar sheets 24"x 36" in size.
The final plans and specifications will be delivered to the City of Thousand Oaks and Caltrans. In addition, we will provide a comment response matrix on how we are addressing both Caltrans' and City comments.
Deliverables:
• Construction Documents: Mylar Plans, specifications, and OPCC • Comment response matrix.
Grand Total; $444,829.41
Schedule:
The overall schedule Is anticipated to be one-year duration, from NTP to completion of final contract documents. Coordination with the Environmental Consultant requirements and information Once final scope Is agreed to, a detailed schedule will be prepared. 10 CO Agreement No. 2019-63
EXHIBIT B
KEY PERSONNEL & COMPENSATION
1. Consultant's designated, representative(s) who are authorized to act on Its behalf and to make all decisions in connection with the performance of services under this Agreement Is: Robert Blume, Project Manager.
2. Total compensation under this Agreement, including reimbursement for actual expenses, may not exceed: $444,829.41.
KEY PERSONNEL:
Name TItle/Posltlon
Robert Blume Project Manager
. ■ ..
SUBCONSULTANTS:
Name
Oakridge Geoscience
Wagner Engineering & Survey
Hattiner, Jewell & Associates
FEE SCHEDULE - SEE ATTACHED
CAM #4826a7554,-4064 v5 / Form Approved January 2018 B-1 CO Agreement No. 2019-53
EXHIBIT B
city of Camsrflk)
ST*5006 PLEASANT VALLEY ROAD BIKE lANES^ML-5393(036)
Professional Engineerbig Design Services
Kimley-Horn and Associates, Inc.
195.24% CVerhesd* Name Nicole Dlas Robert Btume Michael Choi Assistant PM/ PIC/PM QC/QA
Prefessionai Analyst Admin Support
194.67% Overhead* w/oFCCM Categorv/TttleProlect Enaineer 10% Fee* Direct Rate $45.44 598.56 574.52 $51.90 542.46 529.34 Total Hours Total Cost
Taskl: 30% Prrtlmtnery Dealgn 84 28 6 80 300 42 540 5 81350.9S
1.1 Work Plan and Schedule 16 4 20 20 60 S 8,303.67
1.2 Kick-off Meeting 8 4 16 2 30 5 4,856.97
1.3 Data Ctf lection 4 2 20 2 28 S 4,178.20
L4 Surveying 4 2 20 2 28 5 4,178.20
1.5 Property Services / Right of Way Acquisition Services 4 8 20 2 34 $ 6,098.39
1.6A Geotechnical Irwestlgatlon 4 2 20 2 28 5 4,178.20
1.6B Aerially Deposited Lead (ADL) Screening 4 2 4 2 12 5 1,972.27 1,7 30* Design and Contact Utility Owners 40 4 6 80 180 10 320 5 47,885.06 Task 2: Plans and SptadflcationB 176 32 28 240 680 34 1190 5 182386.65
2.1 Preparation of Construction Documents (65%) 72 16 16 100 340 20 564 5 86.180.67
2.2 95* Submlttal 80 8 8 100 260 10 466 5 70,720.80
2.3 Final Submlttal 24 8 4 40 80 4 160 5 25,485.17
TOTAL HOURS 260 60 34 320 980 76 1730
Subtotal Labor $ 38362.18 $ 19301J7 $ 8327.04 $ 53.92734 $ 135,11348 $ 7.240.45 5 26433730 other Direct Costs 5 180,79131
Oakridge Geoscience (Geotechnical and AOL) (Part of Tasks 1.8 A A B) S 37,862.10 Wagner Engineering & Survey (Surveying and Mapping) (Part of Task 1.4) S 48,412.76 HamT>er. Jewell & Asssociates (R/W Acquisition Services (Part of Task l.S) 5 94,516.95 TOTAL aiST: $ 444329.41
CC Agreement No. 2019-53
EXHIBIT B
Kimley»>Horn
Standard Rate Schedule
Effective June 1,2019 to June 30,2021
Actual Labor Hourly
Classification Range
PIC, Project Manager $95-$128
Asst Project Manager/
Project Engineer
$42- $67
QA/QC/Senior Engineer $65- $100
Professional $48- $71
Analyst $38- $59
Clerical $24- $44
Billing Rate: Billing rate will consist of total actual labor costs and indirect costs of 195.24%.
Billing Rate = [Actual Labor Cost + (Actual Labor Cost * Indirect Costs of 195.24%)] Other Direct Costs: Outside Printing/Reproduction, Delivery Services/USPS, Misc. Field Ec
bil
Equipment/Supplies, and Travel Expenses will be billed at actual cost. Mileage will be ulied at the Federal Rate.
Fixed Fee: In addition to the allowable incurred costs. City will pay Consultant a ftxed fee of $23,961.28. The fixed fee is nonadjustable for the term of the agreement, except in the event of a significant change in the scope of work and such adjustment is made by agreement amendment. A pro rata portion of Consultant's fixed fee will be included in the monthly progress payments.
kimley-hom.com I 660 South Figueroa Street, Suite 2050, Los Angeles. CA 90017 I 213 261 4040 CC Agreement No. 2019-53
EXHIBIT C
INSURANCE
1. Required Insurance. Before commenclrig any services, Consultant must procure and maintain in full force and effect during the term of this Agreement the following types of insurance with at least the minimum coverage listed and subject to the applicable additional requirements set forth below; Type of Insurance Limits (combined singled
Commercial General Liability $2,000,000 / $4,000,000 aggregate* Business Automobile Liability $1,000,000
Workers* Compensation Statutory
Professional Liability** $1,000,000
2. insurance Rating. All insurance required to be maintained by Consultant must be issued by companies licensed by or admitted to conduct insurance business in the State of Califomia by the California Departrnent of insurance and must have a rating of A- or better and Financial Size Category Class VII or better by the latest edition of A.M. Best's Key Rating Guide, unless otherwise approved by Local Agency's legal counsel.
3. Commercial General Liability Insurance. The commercial general liability insurance riiust meet or exceed the requirements of Insurance Services Office (ISO) form CG 00 01, and must be provided on a per occurrence basis for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not beeri amended. The insurance must be on an "occurrence" not a "claims made" basis. Defense costs must be paid In addition to limits. There must be no cross- liability exclusion for claims or suits by one insured against another". The insurance must include a waiver of subrogation applicable to the insurance or self-insurance, a primary and non-contributory endorsement, and an additional insured endorsement, all in favor of the Local Agency, its officers, employees and agents, and volunteers. Any endorsement restricting standard ISO "insured contract" language will not be accepted.
4. Business Automobile Insurance. The business automobile insurance coverage must be at least as broad as ISO Business Auto Coverage form OA 00 01, covering bodily injury and property damage for all activities, of the Consultant arising out of or in connection with the services to be performed under this Agreement, Including coverage for any owned, hired, non-owned or rented vehicles, in an amount stated above per combined single limit for each accident. Such insurance must include both a waiver of subrogation applicable to the insurance or self-insurance, and a primary and non- contributory endorsement, both in favor of the Local Agency, its officers, employees, agents, and volunteers.
5. Workers' Compensation. If Consultant has any employees. Consultant must maintain workers' compensation,insurance (statutory limits) and employer's liability insurance (with limits of at least $1,000,000). Such insurance must include a waiver of subrogation endorsement in'favor of Local Agency, its officers, employees, ageiits, and volunteers.
6. Professional Liability (Errors & Omissions) Insurance. The professional liability insurance must cover the services to be performed under this Agreement. The coverage and must be provided on a "claims made" basis. Consultant must maintain continuous coverage through a period not less than three years after the completion of the services required under this Agreement.
7. Umbrella or Excess Liability Insurance. If an excess or umbrella liability policy is used to meet minimum limit requirements, the insurance must provide coverage at least as broad as specified for the underlying coverages. Any such coverage provided under an umbrella or excess liability policy must include a "drop-down provision" requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncoliectable in whole or in part for any CAM #4826-7554-4064 v5 / Form Approved Januaty2018 C-1
CC Agreement No. 2019-53
reason. Coverage must be provided on a °pay-on-behaIf basis, with defense costs payable in addition to policy limits. There may be.no cross-liability exclusion precluding coverage for claims or suits by one insured against another. The policy must "follow form" to the underlying primary policy.
Coverage must be applicable to all insureds under the primary policies. The insurance must contain or be endorsed to contain a waiver of subrogation applicable to the insurance or self-insurance, and a primary and non-contributory endorsement for the benefit of Local Agency. The scope of coverage provided is subject to approval of Local Agency following receipt of the required proof of irisurance.
Limits are subject to review, but in no event may be less than $4,000,000 per occurrence and aggregate.
8. Deductibles and Self-Insured Retention. Any deductibles or self-insured retentions applicable to the insurance policies required under this Agreertient must be declared to and approved by Local Agency. In no event may any required insurance policy have'a deductible, self-insured retention or • other similar policy provision in excess of $50,000 without prior written approval by Local Agency in its sole discretion. At the option of Local Agency, either the insurer will reduce or eliminate such deductibles or self-insured retentions with respect to the Local Agency's additional insureds or Consultant will procure a bond guaranteeing payment of any losses, damages, expenses, costs or settlements up to the amount of such deductibles or self-insured retentions.
9. Certificates of Insurance and Endorsements; Notice of Termination or Changes to Policies.
Prior to commencing any services under this Agreement, Consultant must file with the Local Agency certificates of insurance and endorsements evidencing the existence of all insurance required by this Agreement, along with such other evidence of insurance or certified copies of policies as may reasonably be required by Local Agency. These certificates of insurance and endorsements must be in a form approved by the Local Agency's legal counsel. Consultant must maintain current certificates and endorsements on file with Local Agency during the term of this Agreement reflecting the existence of all required Insurance. Each of the certificates must expressly provide that no material change in the policy, or termination or cancellation of the required coverage, will be effective except upon 30 days' prior written notice to Local Agency by certified mail, i^eturn receipt requested (except for nonpayment for which a 10-day notice is required). The delivery to Local Agency of any certificates of insurance or endorsements that do not comply with the requirements of this Agreement will not waive,the Local Agency's right to require compliance. In the event that Consultant's policies are materially changed. Consultant must provide the Local Agency with at least 30 days' prior written notice of the applicable changes. Local Agency reserves the right to require complete, certified copies of all required insurance policies at any time.
10. Failure to Maintain Required Insurance. If Consultant, for any reason, fails to have in place at all times during the term of this Agreement all of the required insurance coverage,'the Local Agency may, but is not obligated to, obtain such coverage at Consultant's expense and deduct the cost from the sums due Consultant. Alternatively, Local Agency may terminate the Agreement.
11. Effect of Coverage, The existence of the required Insurance coverage under this Agreement will not be deemed to,satisfy or limit Consultant's indemnity obligations under this Agreement. Consultant acknowledges that the insurance coverage and policy limits set forth in this Agreement constitute the minirnum coverage and policy limits required. Should any coverage carried by the Consultant or any subcontractor of any tier have limits of liability that exceed the limits or have broader coverage than required In this Agreement,.those higher limits and that broader coverage are deemed to apply for the benefit of any person or organization included as an additional insured and those limits and broader coverage will become the required minimum limits and' irisurance coverage in all sections of this Agreement. Ahy insurance proceeds available to Local Agency in excess of the limits and coverages required, by this Agreement, and which is applicable to a given loss, must be made available to'Local Agency to compensate it for such losses.
12. Required Insurance for Subconsuitants/Subcontractors. Consultant agrees to ensure that any subconsultants/subcontractors providing services under this Agreement provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to review and CAM#4826-7554-4064v5/Form Approved January 2018 C-2
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monitor all such coverage and assumes responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. ^
13. Right to Revise Insurance Specifications. Local Agency reserves the right to change the amounts and types of insurance required by giving Consultant at least 90 days advance written notice of such change. If such change results in substantial additional cost to Consultant, the parties may renegotiate Consultant's compensation.
14. Timely Notice oiP Claims. Consultant must give Local Agency prompt notice of claims made of lawsuits initiated thM arise but of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability insurance policies.
CAM #4826-7554-4064 y5 / Form Approved January 2018 C-3 CC Agreement No. 2019-53
EXHIBIT D
REQUIRED FEDERAL-AID A&E CONTRACT LANGUAGE
' ' A&E CONTRACT LANGUAGE
Article Subject Page
Mandatory Fiscal and Federal provisions:
Article I Introduction D-3
Article II - • Consultants's Reports or Meetings D-4
Articie ili " Not Used , D-4
Articie IV Performarice Period D-4
Articie V Aliowable Costs and Payments ! D-5
Articie VI Termination D-6
Articie Vli CqM Princlpies and Administrative Requirements ; ^ D-7 Articie VIII Retention of Records/Audit 0-7
Article IX Audit Review Procedures.. D-8
Article X Subcontracting, D-9
Article XI Equipment Purchase and Other Capitai Expenditures D-10 Article XII State Prevailing Wage Rates D-11
Article XIII Conflict of Interest D-15
Article XIV Rebates, Kickbacks or other Unlawful Consideration D-15 Article XV Prohibition of Expending Locai Agency State or Federal Funds for Lobbying D-15 Articie XVI Non-Discrimination Clause and Statement of Compliance D-16 ArticieXVII Debarrrieht^and Suspension Certification... , D-17 ArticieXVIII ^ Disadyantaged Business Enterprises (DBE) Participation ..D-18 Articie XIX Not Used ! ..D-20
Article XX Funding Requirements D-20
Article XXi Change in Terms , , D-20
Articie XXII Contingent-Fee D-21
Article XXlll Not Used: ; D-21
Article XXIV inspection of Work D-21
Article XXV Safety:...... D-21
Article XXVI Not Used D-22
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Article Subject Page
Article XXVll Not Used D-22
Article XXVll! Confidentiality of Data D-22
Article XXIX National Labor Relations Board Certification D-22 Article XXX Not Used , D-23
Article XXXI Retention of Funds D-23
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ARTICLE I INTRODUCTION
A. This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY; The name of the "CONSULTANT" is.as follows:
Kimlev-Hom arid Associates. thcJ
Incorporated in the State ofNorth.Carolina
The Project Manager for the "CONSULTANT" will be Robert Blume The name of the "LOCAL AGENCY" is as follows:
City of Gamarilld
' The Contract Administrator for LOCAL AGENCY will be
B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT'S Cost Proposal dated July 24.2019. The approved consultant's Cost Proposal is attached hereto E^ibits A&B. and incorporated by reference.?- If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.
C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys' and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.
D. CONSULTANT in the performance of this AGREEMENT, shall act in an independent capacity. It is" understood and agreed that CONSULTANT (including CONSULTANT'S employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT'S assigned personnel shall not be entitled to any benefits payable to employees of City.
E. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT'S assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.
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F. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.
G. Except as expressly authorized herein, CONSULTANT'S obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract ^y work, without.the prior written approval of the Local AGENCY. However, claims for money due or which become due to CONSULTANT from City under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval.
Notice of any assignment or transfer whether voluntary or involuntary shall be fumished promptly to the LOCAL AGENCY.
H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.
I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT'S expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
ARTICLE n CONSULTANT'S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY'S Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT'S Project Manager shall meet with LOCAL AGENCY'S Contract Administrator, as needed, to discuss progress on the AGREEMENT.
ARTICLE m - NOT USED
ARTICLE IV PERFORMANCE PERIOD i
A. This AGREEMENT shall go into effect on July 24, 2019, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY'S Contract Administrator. The AGREEMENT shall end on July 24, 2021, unless extended by AGREEMENT amendment.
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B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fiilly executed and approved by LOCAL AGENCY.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. The method of payment for this AGREEMENT will be based on actual cost plus a fixed fee.
LOCAL AGENCY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved CONSULTANT'S Cost Proposal, unless additional reimbursement is provided for by AGREEMENT amendment. In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds LOCAL AGENCY'S approved overhead rate set forth in the'Cost Proposal. In the event, that LOCAL AGENCY determines that a change to the work from that specified in the Cost Proposal and AGREEMENT is required, the AGREEMENT time or actual costs reimbursable by LOCAL AGENCY shall be adjusted by AGREEMENT amendment to accommodate the changed work.
The maximum total cost as specified in Paragraph "I" of this Article shall not be exceeded, unless authorized by AGI^EMENT amendment.
B. The indireet cost rate established for this AGREEMENT is extended through the duration of this specific AGREEMENT. CONSULTANT'S agreement to the extension of the 1-year ■applicable period shall not be a condition or qualification to be considered for the work or AGREEMENT award.
C. In addition to the allowable incurred costs, LOCAL AGENCY will pay CONSULTANT a fixed fee of $23,961.28.. The fixed fee is nonadjustable for the term of the AGREEMENT, except in the event of a significant change in the scope of work and such adjustment is made by AGREEMENT amendment.
D: Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.
E. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.
F. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT'S fixed fee will be included in the monthly progress payments. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT.
G. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this AGRBElVffiNT.
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H. CONSULTANT will be reimbursed promptly according to California Regulations upon receipt by LOCAL AGENCY'S Contract Administrator of itemized invoices in duplicate.
Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title.
Final invoice must contain the final cost and all credits due LOCAL AGENCY including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT'S work. Invoices shall be mailed to LOCAL AGENCY'S Contract Administrator at the following address:
City of Camarillo
Attention: Ken Matsuoka
601 Carmen Drive
City of Camarillo; CA 93010
I. The total amount payable by LOCAL AGENCY including the fixed fee shall not exceed $'444,829.41'.
J. Salary increases will be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and' is approved by LOCAL AGENCY'S Contract Administrator.
K. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to,' reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and in accordance with Section 15, Property of LOCAL AGENCY.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that .CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice oftemporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination provided for in subsection A of this section.
C. Notwithstanding any provisioris of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to D-6
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CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT, except as provided in Section 11C. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and in accordance with Section 15, Property of LOCAL AGENCY.
ARTICLE Vn COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal'procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE Vm RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY- shall maintain all books, documents, papers, accounting records. Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited toj the costs of administering the AGREEMENT. All parties, including the CONSULTANT'S Independent CPA, shall make such workpapers and materials available at their respective offices at ail reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, Subconsultants, and the CONSULTANT'S Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpapef review, excerpts, and transactions, and ' copies thereof shall be fumished if requested without liniitation.
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ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY'S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance ofthe final audit report, CONSULTANT may request a review by LOCAL AGENCY'S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTS, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper " review. If selected for audit or^eview, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT'S responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA's work papers including'making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual termsnf costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT'S Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by Caltrans Audits and Investigation (A&I)..Caltrans A&I, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the!,audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the ' management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of ie AGREEMENT and disallowance of prior reimbursed costs.
1. During Caltrans A&I's review of the ICR audit work papers created by the L CONSULTANT'S independent CPA, Caltrans A&I will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans A&I identifies significant issues during the review and is unable to issue a cogniz^t D-8
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approval letter," LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit, Guide; and other applicable procedures and guidelines} is received and approved by A&I.
Accepted rates will be as follows:'
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) ofthe proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed ratei
2. If Caltrans A&I is unable to issue a cognizant letter per paragraph E.l. above, Caltrans A&I may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. Caltrans A&I will then have up to six (6) months to review the CONSULTANT'S and/or the independent CPA's revisions.
3. If the CONSULTANT fails to comply with the provisions ofthis paragraph E, or if Caltrans A&I is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rej ection of the ICR arid set forth in paragraph E. 1. above for all.rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) Caltrans A&I accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; arid, (3) Caltrans A&I has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after.occurrence of the last of these items.
The accepted ICR will apply to this AGREEMENT and 'all other .agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no.subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT D-9
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agrees to be as fully responsible to the LOCAL AGENCY for the acts and oihissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The ' CONSULTANT'S obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY'S obligation to inake payments to the CONSULTANT. ^ B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT'S approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment ,made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior ■ authorization in writing by LOCAL AGENCY'S Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT'S approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY'S Contract Administrator, three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
C. Any equipment'purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT'S expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be D-10
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obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE Xn STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (http://www.dot.ca.gov/hq/construc/LaborCompliance/documents/District' Region Map Construction 7-8-15.pdf). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code § 1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations Intemet site at http://www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code § 1776 and as defined in 8 CCR § 16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
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2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representative's, at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows: - ,
a. A certified copy of an employee's payroll record shall be made available for inspection or fiimished to the employee or the employee's authorized representative on request. . b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls- submitted'to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public "shall not be given access to certified payroll records by the CONSULTANT.
The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY" Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten,(l 0) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as.copies and fiimished upon request to the public or any public agency, by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social . security number. The name and address - of the' CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the' records enumerated in paragraph (l) above. In the event the CONSULTANT or Subconsultant-fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until ' strict compliance is effectuated. Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
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E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the' invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation ofthe requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive. • '
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective'prevailing wage obligations, or the willful failure'by the CONSULTANT or'Subconsultmt to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Cocle. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3 . In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion' thereof for which each worker was paid less than the prevailing wage fate shall be paid to each worker by the CONSULTANT or Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of the project is not liable for the;penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages - to those Workers or unless the prime CONSULTANT fails to comply with all of the following requirements: - ' j
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant" for the iDerformance of work on public works projects shall include a .copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5,1813, and 1815. b. The CO"NSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant's failure to pay the specified prevailing rate of wages to the Subconsultant's workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining • sufficient funds due the Subconsultant for work performed on the public works project.
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d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified geineral prevailing rate of per diem wages to the Subconsultant'semployees on the public works project and any amounts due pursuant to Labor Code §1813.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall'notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate ofper diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hdurs per day, and forty (40) hours during any one week, shall be permitted upon.compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than' one and one-half (1.5) times the basic rate of pay, as provided in §1815. * H. Employment of Apprentices
1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT arid any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employriient ofapprentices.
2. CONSULTANTS and, subconsultants are required to cpmply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific joumey-to- apprentice ratios for the AGREEMENT work. ■ The CONSULTANT is responsible for all subconsultants' compliance with these requirements. Penalties are specified in Labor Code §1777.7.
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ARTICLE Xm CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, ' Easiness, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL;AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to .advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT. ■ " ^ .
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. Ah affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee. For breach or violationof this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct fforn this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or .bther unlawfiil considerMion.
ARTICLE XV PROHIBITION OF EXPEIVDING LOCAL AGENCY, STATE, OR
FEDERAL FUNDS FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that: -
1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local. State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or D-15
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Congress, or any employee of a Member of the Legislature or Congress inconnection with the awarding'or making of this AGREEMENT, or with the extension, continuation," renewal, amendment, or modification of this AGREEMENT.
^ 2. If any funds other than Federal appropriated funds haye been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when This transaction was made or .entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 UiS.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($ 100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF
COMPLIANCE
A. The CONSULTANT'S signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and2CCR §8103.
B.' During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT'S benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant' for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability,' medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment oftheir employees and applicants for employment are free fi*om such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the D-16
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regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov.
Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours' notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultanty shall-give written notice oftheir obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.)." Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
ARTICLE XVIIDEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT'S signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of Cdifornia, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, of determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
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4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government Excluded Parties List System maintained by the U.S.
General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE)
PARTICIPATION
A. This AGREEMENT is subject to 49 CFR Part 26 entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs".
CONSULTANTS who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 12%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit lO'OJ: Consultant Proposal DBE Commitment, or in Exhibit I0-O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT.
If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information - Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. DBEs and other small businesses, as defined in 49 CFR Part 26 are encouraged to participate in the performance of AGREEMENTS financed in whole or in part with federal funds. The LOCAL AGENCY, CONSULTANT or subconsultant shall no( discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The CONSULTANT shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the CONSULTLANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the LOCAL AGENCY deems appropriate, which may include, but is not limited to:
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(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible E. A DBE firm may be termmated only with prior written approval from LOCAL AGENCY and only for the reasons specified in 49 CFR §26.53(1^; Prior to requesting LOCAL AGENCY consent for the termination^ CONSULTANT must meet the procedural requirements specified in 49 CFR §26.53(f). Tf a DBE subconsultant is unable to perform, CONSULTANT must make a good faitheffoit to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
F. Consultant shall not be entitled to any payment for such work or material unless it is performed or supplied by the listed DBE or by other forces (including those of Consultant) pursuant to prior written authorization of the LOCAL AGENCY'S Contract Administrator.
G. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreenieht basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, wheAer the amount the firm is to be paid under the AG^EMENT is commensurate with the work it is.actually performing, and other relevant factors.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business ^ . address of each DBE or vendor and the total dollar amount actually paid each DBE or Vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime CONSULTANT'S shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
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K. Upon completion of the AGREEMENT, a summar>' of these records shall be prepared and submitted on the form entitled, Exhibit I7-F: Final Report-Ulilization of Disadvantased Business Enterprise (DBE) First-Tier Subconsultants. certified correct by CONSULTANT or CONSULTANT'S authorized representative and shall be ftimished to the Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to CONSULTANT when a satisfactory "Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants" is submitted to tlie Contract Administrator.
L. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY'S Contract Administrator within thirty (30) calendar days.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XIX - NOT USED
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only, if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
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B, CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY'S Contract Administrator.
C. There shall be no change in CONSULTANT'S Project Manager or members of the project te^, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by LOCAL AGENCY'S Contract Administrator.
ARTICLE XXn CONTINGENT FEE '
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount'of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXm - NOT USED
ARTICLE XXTV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times, during the performance period of this AGREEMENT. ' - " .
ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures, CONSULTANT shall comply with ' safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site. \
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public * traffic. - CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
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ARTICLE XXVI - NOT USED
ARTICLE XXVII - NOT USED
ARTICLE XXVin CONFIDENTIALltY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY'S operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the' AGiREEMENT or LOCAL AGENCY'S actions on the same, except to LOCAL AGENCY'S staff, CONSULTANT'S own personnel involved in the performance of this AGREEMENT, at public hearings; or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item' of any naturej whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY'S written permission.
E. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FIWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organizkion without the prior written approval of City or except by court order. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to. City's attorney's fees and disbursements, including witholit limitation experts' fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contemptof court by a federal court has been issued against CONSULTANT within the immediately preceding two- year period, because of CONSULTANT'S failure, to comply with an order of a federal court that orders CONSULTANT'to comply with an order of the National Labor Relations Board.
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ARTICLE XXX - NOT USED
ARTICLE XXXI RETENTION OF FUNDS
No retainage will be withheld by LOCAL AGENCY from progress payments due the CONSULTANT. ' Retainage by the CONSULTANT or subconsultants is prohibitedj and no retainage will be held by the CONSULTANT from progress due subconsultants. Any violation ofthis provision shall subject the violating CONSULTANT or subconsultants to the penalties, sanctions, and other remedies specified in Business and Professions Code §7108.5.
This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by the CONSULTANT or deficient subconsultant performance, or noncomplianee by a subconsultant. This provision applies to both DBE and non-DBE CONSULTA'OT and subconsultants.
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