III. MVR Consulting Fees:
MVR Consulting
Task: Dream Homes Park Project Services
Estimated
Hours
Hourly
Rate
Estimated
Cost
I. Grant Administration Services
Project Manager: Martha van Rooijen
110 $175/Hr. $19,250
II. Coordination and Design Oversight Services
Project Manager: Martha van Rooijen
418 $175/Hr. $73,150
Subtotal: $92,400
III. Estimated Reimbursables
(e.g., Mileage, Meeting Materials, Copies and Postage)
Billed
At-Cost $1,500
Total Cost: $93,900
MVR Consulting will consider the return of this signed Proposal as the Notice to Proceed for Task Order Amendment No. 1: Dream Homes Park Grant and Project Support Services through construction and project close-out phases.
Sincerely,
__________________________________________________________ Martha van Rooijen, Owner John A. Corella, P.E. Director of Public Work/Engineering Date
MVR CONSULTING CITY OF CATHEDRAL CITY
Notes:
• Cathedral City to provide maps and other data for the project, as needed. • MVR Consulting may revise hourly rates for cost-of-living adjustments on an annual basis, beginning January 1st of each calendar year.
• Services to be performed during regular business hours, 9 am to 5 pm, Monday to Friday, excluding weekends and holidays.
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Staff Report
City Council
Item No. 7.B
Meeting Date: November 8, 2023
From: John Corella, Director of Engineering/Public Works Title: Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and Candlewood Drive
City Council
RECOMMENDATION:
For the City Council to:
· Award a construction contract to Elecnor Belco Electric, Inc., in the amount of $1,071,888 for the Highway Safety Improvement Program (HSIP) Cycle 10 - Pedestrian Crossing at Ramon Road near Candlewood Drive Project (C08753); and,
· Award a professional services agreement to TKE Engineering Inc., in the amount of $51,393 for professional construction engineering support services for this Project; and,
· Approve a twenty percent (20%) contingency in the amount of $216,819 for unforeseeable construction costs; thereby bringing the total construction budget for this Project to $1,340,100; and,
· Authorize a budget amendment in the amount of $250,000 from Measure A Funds (account 243-100-150-156-8800-8802); and,
· Authorize the City Manager to execute the contract documents; and, · Authorize the City Engineer to request bonds and insurance for the Project and issue the Notice to Proceed.
BACKGROUND:
On March 26, 2021, the California Department of Transportation (Caltrans) awarded the City with a $776,600 HSIP Cycle 10 Project (Project) Grant to install a High Intensity Activated Crosswalk (HAWK) crossing and respective median fencing along Ramon Road near the intersection area of Avenida La Paloma. The grant included funds for Preliminary Engineering (PE), Construction Engineering (CE), and Construction (CON).
On February 23, 2022 the City Council awarded a Professional Services Agreement with STC Traffic Inc. (STC) to prepare the Plans, Specifications, and Estimates (PS&E) for the Project.
At the June 22, 2022 Study Session meeting, City Staff provided the City Council with
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an update on the Project regarding the Project vicinity, existing conditions, and proposed optimal configuration of the crosswalk. The recommended optimal configuration shifted the crosswalk location along Ramon Road from Avenida La Paloma to Candlewood Road, and modified the signal type from a HAWK traffic signal to a conventional traffic signal configured for pedestrian crossings only.
At the January 11, 2023, Study Session meeting, the City Council selected a custom tubular steel fence with the Cathedral City peaks as the median fencing option for this Project and delegated the selection of color to the Public Arts Commission (PAC). On February 14, 2023, the PAC selected Orange as the color to be powder coated on the median fencing for the Project.
On June 8, 2023, the Consultant submitted to the City the final PS&E package, and City Staff submitted to Caltrans the Request for Allocation (RFA) of HSIP Construction funding. Caltrans provided notification of the RFA approval on August 1, 2023.
DISCUSSION:
Construction Contract
On Wednesday, August 23, 2023, the City advertised an invitation to bid, requesting qualified contractors to perform the described scope of work found in Bid No. B24 -49E, which included the Plans and Specifications for this Project. This solicitation was made available to contractors for twenty -two (22) calendar days and advertised in the following locations:
• Desert Sun – Advertised on August 23, 2023 and September 1, 2023 • PlanIt Print Works – From August 23, 2023, until September 14, 2023 • City’s Website - From August 23, 2023, until September 14, 2023
On September 14, 2023, the City received two (2) bid proposals for this Project. The following table ranks each qualified bidder by total price:
RANK CONTRACTOR AMOUNT
1 Elecnor Belco Electric, Inc. (Chino, CA) $1,071,888
2 DBX, Inc. (Temecula, CA) $1,137,500
The Bid Tabulation prepared by the Engineering Division is attached to this report for reference.
Based on the bids received, the lowest responsive and responsible bidder is Elecnor Belco Electric, Inc. (Belco) from Chino, CA.
Belco’s construction estimate in their submitted bid was $516,888 higher than the amount awarded to the City through the HSIP 10 Grant.
On September 29, 2023, the City Staff submitted a Request for Additional Funds to Caltrans in the amount of $677,700 for the construction of the Project. On October 9, 2023, Caltrans informed the City that two -thirds ($451,800) of the additional funds
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requested will be provided by additional HISP funding, and the remaining one -third ($225,900) of the additional funds requested will need to be provided by the City as a local match requirement. A budget amendment will be required to provide this local match requirement.
All construction work will be performed within the existing City right -of-way. The construction work is scheduled to start in March 2024 and is estimated to be completed by November 2024.
ENVIRONMENTAL ANALYSIS:
This Project is categorically excluded under the National Environmental Policy Act (NEPA) process for federally funded projects per 24CFR58.35 (a)(1), and Categorically Exempt under the California Environmental Quality Act (CEQA), Section 15301 for “Existing Facilities”.
Request for Qualifications/Proposals (RFQ/P) Construction Engineering Support Services
During the application submittal, the City included funds for Construction Engineering to ensure the Project would comply with all State-funded HSIP project requirements during construction. The construction engineering support services needed for this Project include labor compliance monitoring and enforcement, inspection, and material testing.
Staff solicited RFQ/P for Construction Engineering Support Services for the HSIP Cycle 10 Project. The RFQ/P was advertised in the Desert Sun and the City’s website on September 6, 2023. City Staff also circulated the RFQ/P to consultant companies that typically provide these services for similar projects. Consultant companies were given until September 20, 2023, fourteen (14) days, to submit proposals. The RFQ/P requested to provide cost proposals that included hourly rates and/or unit costs for various services in a separate, sealed envelope, all according to Cal Trans and Federal Highway Administration (FHWA) proposal submittal/review requirements.
Proposals for Construction Engineering Support Services for HSIP Cycle 10 were received from the following four (4) consultant companies:
• Falcon Engineering Services, Inc. Temecula
• Interwest Consulting Group San Diego
• KOA Corporation Ontario
• TKE Engineering, Inc. Riverside
The proposals were reviewed by a panel consisting of three members of City Engineering Staff. The panel cited all companies provided proposals that were responsive, qualified, and knowledgeable about the requirements for the various tasks and understanding of Cathedral City and its Projects. The rating summary of the panel’s review is attached.
The scores from the reviews ranked TKE Engineering, Inc. (TKE) with the highest ratings. TKE submitted work proposals providing assurance that, if selected, the
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performance of construction engineering support tasks that may be ordered by City Staff would be completed in a timely manner.
Following the scoring of the companies, the cost proposal of TKE was opened and reviewed, per State requirements for evaluating proposals as the guideline. The cost proposal received from TKE is consistent with current costs and in line with the City’s expectations for these types of services.
City Staff recommends the City Council:
• Award a construction contract to Elecnor Belco Electric, Inc., in the amount of $1,071,888 for the Highway Safety Improvement Program (HSIP) Cycle 10 - Pedestrian Crossing at Ramon Road near Candlewood Drive Project (C08753); and,
• Award a professional services agreement to TKE Engineering Inc., in the amount of $51,393 for professional construction engineering support services for this Project; and,
• Approve a twenty percent (20%) contingency in the amount of $216,819 for unforeseeable construction costs; thereby bringing the total construction budget for this Project to $1,340,100; and,
• Authorize a budget amendment in the amount of $250,000 from Measure A Funds (account 243-100-150-156-8800-8802); and,
• Authorize the City Manager to execute the contract documents; and, • Authorize the City Engineer to request bonds and insurance for the Project and issue the Notice to Proceed.
FISCAL IMPACT:
The Total Funding provided by the HISP Grant includes funds for Preliminary Engineering (PE), Construction Engineering (CE), and Construction (CON), in the amount of $1,228,400.
The PE phase has been completed, leaving a remaining total of HSIP funds in the amount of $1,090,100 for CON and CE phases of the Project as shown below.
Construction $ 1,006,800
Construction Engineering $ 83,300
HSIP Grant Total $ 1,090,100
The budget required for CON and CE will include a 20% contingency for a total amount of $1,340,100 as shown below.
Belco (Contractor with lowest bid) $ 1,071,888
TKE (Selected CE Consultant) $ 51,393
Subtotal $ 1,123,281
20% Contingency $ 216,819
CON+CE Total $ 1,340,100
Additional funds, in the amount of $250,000, will be required to complete the construction of this Project.
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CON+CE Total $ 1,340,100
HSIP Grant Total $ 1,090,100
Additional Funds Required $ 250,000
To complete the construction of this Project, City Staff is proposing to reallocate programmed Measure A Funds (account 243 -100-150-156-8800-8802) from the construction of Los Gatos Road and Date Palm Drive Drainage Improvement Project, in the amount of $250,000. By reallocating the amount of $250,000 from programmed Measure A Funds, the City will meet with the local match requirements for this project and the Project will not impact the General Fund.
(Please note that the above Los Gatos and Date Palm Drive Drainage Improvements are proposed to be included in the reconstruction of Date Palm Drive as a result of Tropical Storm Hilary. This reconstruction work is proposed to be funded by either State and/or Federal Emergency Roadway Repair funding , if approved , or reprogrammed SB-1 funding, and/or a combination of both, to be presented to the City Council in the CIP budget reallocation discussion this same Council meeting.)
City Staff recommends City Council authorize a budget amendment in the amount of $250,000 from Measure A Funds (account 243-100-150-156-8800-8802).
FIVE-YEAR STRATEGIC PLAN:
Goal B: Community Investment
Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.
ATTACHMENTS:
Project Location
Bid Tabulation - HSIP Cycle 10
Contract - Elecnor Belco Electric, Inc.
RFQ/P Evaluations Scores and Rankings
TKE Engineering Inc. - RFQ/P Work Proposal
Professional Services Agreement - TKE Engineering, Inc.
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111
111
10 VICINITY MAPINTERSECTION LOCATION
WEBBNWES
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Attachment: Project Location (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and Candlewood Drive) C1
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Attachment: Project Location (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and Candlewood Drive)
CITY OF CATHEDRAL CITY
HSIP CYCLE 10
Bid Tabulation/ Analysis
CITY PROJECT No.: 8753
1 MOBILIZATION LS 1 15,000.00$ 15,000.00 $ 15,000.00 $ 15,000.00 $ 48,560.00 $ 48,560.00 $ 2 TRAFFIC CONTROL LS 1 20,000.00$ 20,000.00 $ 45,000.00 $ 45,000.00 $ 38,260.00 $ 38,260.00 $ 3 SURFACE IMPROVEMENTS LS 1 320,000.00$ 320,000.00 $ 596,500.00 $ 596,500.00 $ 583,000.00 $ 583,000.00 $ 4 TRAFFIC SIGNAL IMPROVEMENTS LS 1 295,000.00$ 295,000.00 $ 446,000.00 $ 446,000.00 $ 345,280.00 $ 345,280.00 $ 5 COMMUNICATION IMPROVEMENTS LS 1 30,000.00$ 30,000.00 $ 29,000.00 $ 29,000.00 $ 24,510.00 $ 24,510.00 $ 6 SIGNING AND STRIPING IMPROVEMENTS LS 1 42,000.00$ 42,000.00 $ 6,000.00 $ 6,000.00 $ 32,278.00 $ 32,278.00 $ 722,000.00$ 1,137,500.00 $ 1,071,888.00 $
722,000.00$ 1,137,500.00 $ 1,071,888.00 $
UNITITEM DESCRIPTION TOTAL QUANTITY UNIT COST
BID SCHEDULE NO. 1: HSIP 10
SUB-TOTAL BID SCHEDULE NO.1
Engineers Estimate
TOTAL
TOTAL ALL BID ITEMS
BELCODBX
UNIT COST TOTAL UNIT COST
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Attachment: Bid Tabulation - HSIP Cycle 10 (3954 : Award Contracts for HSIP Cycle 10: Pedestrian
Agreement 1300-1
SECTION 1300
CONTRACT
THIS CONTRACT, by and between the CITY OF CATHEDRAL CITY, a municipal corporation, herein referred to as "City, and Elecnor Belco Electric, Inc., herein referred to as, "Contractor."
W I T N E S S E T H:
In consideration of their mutual covenants, the parties hereto agree as follows:
1. Contractor shall furnish all necessary labor, material, equipment, transportation and services for BID NO. B24-49E, CIP NO. 8753 , HSIP CYCLE 10: PEDESTRIAN CROSSING AT RAMON ROAD NEAR CANDLEWOOOD DRIVE (the “Work”) in the City of Cathedral City, California. The Work shall be done in strict conformity with this Contract, approved Change Orders, the Invitation to Bid dated August 23, 2023, Instructions to Bidders, permits issued by the City or other agencies, the General and Specific Project Requirements, Stan dard Specifications, Plans, Referenced Specifications, the General Conditions, Supplementary Conditions the Contractor's Bid, and any addenda thereto (the “Contract Documents”) all of which shall be considered a part hereof as though fully set herein.
2. Contractor will comply with all Federal, State, County, and City of Cathedral City laws, regulations and policies, which are, as amended from time to time, incorporated herein by reference.
3. All work shall be done in a workman like manner and to the satisfaction of the City Engineer.
4. Time is of the essence in Contractor’s performance of the Work for this Contract. Contractor agrees to diligently pursue the performance and completion of the Work in every detail to the satisfaction of the City.
Contractor shall commence work after the issuance of a written Notice to Proceed and agrees to have all work completed within One Hundred Eighty (180) working days from the date of Notification to Proceed.
5. In consideration of said Work, City agrees to pay Contractor such sums as shall be approved by the City Engineer at lump sums and/or unit prices stated in the Contractor's Bid . The total compensation to Contractor for all Work shall not exceed One Million Seventy-One Thousand Eight Hundred Eighty-Eight Dollars and Zero Cents ($1,071,888.00). All payments shall be subject to approval by the City Engineer and shall be in accordance with the terms, conditions, and procedures provided in the Contract Documents.
6. The Contractor, and any subcontractor engaged by Contractor, shall not pay less than the general prevailing rate for per diem wages, as determined by the State of California Department of Industrial Relations and referred to in the Invitation to Bid, to any workman employed for the work to be performed under this contract; and the Contractor shall forfeit as a penalty to the City up to Two Hundred Dollars ($200.00) for each calendar day, or fraction thereof, for every workman paid by Contractor or by any subcontractor engaged by Contractor, in violation of this provision (Sections 1770-1777, Labor Code of California).
7. Concurrently with the execution of this Contract, Contractor shall furnish bonds of a surety satisfactory to City, as provided in the Contract Documents, the cost of which shall be paid by Contractor.
8. Contractor agrees to indemnify, hold harmless, release and defend (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council and each member thereof, and its officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney's fees and costs of litigation) which in whole or in part are claimed to result from or to arise out of the usage or operation, including the malfunctioning of, or, any injury caused by, any product purchased herein; or any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its employees, representatives, subcontractors, or agents in connection with the performance of this Contract. This agreement to indemnify includes, but is not limited to, personal injury (including death at any time) and damage to property (including, but without limitation, contract or tort or patent , copyright, trade secret or trademark infringement) sustained by any person or persons (including, but not limited to, companies, or corporations, Contractor and its employees or agents, and members of the general public.
9. Except as otherwise required, Contractor shall concurrently with the execution of this Contract, furnish the City satisfactory evidence of insurance of the kinds and in the amounts provided in the Contract
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Attachment: Contract - Elecnor Belco Electric, Inc. (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
Agreement 1300-2
Documents. This insurance shall be kept in full force and effect by Contractor during this entire contract and all premiums thereon shall be promptly paid by it. Each policy shall further state that it cannot be canceled without 30 days unconditional written notice to the City and shall name the City as an additional insured. Contractor shall furnish evidence of having in effect, and shall maintain Workers Compensation Insurance coverage of not less than the statutory amount or otherwise show a certificate of self -insurance, in accordance with the Workers Compensation laws of the State of California. Failure to maintain the required amounts and types of coverage throughout the duration of this Contract shall constitute a material breach of this Contract.
10. Contractor shall forfeit as a penalty to City $25.00 for each laborer, wo rkman, or mechanic employed in the execution of this Contract by said Contractor, or any subcontractor under it, upon any of the work herein mentioned, for each calendar day during which such laborer, workman, or mechanic is required or permitted to work at other than a rate of pay provided by law for more than 8 hours in any one calendar day and 40 hours in any one calendar week, in violation of the provisions of Sections 1810-1815 of the Labor Code of the State of California.
11. In accepting this Contra ct, Contractor certifies that in the conduct of its business it does not deny the right of any individual to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, me ntal disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status as provided in the California Fair Employment Practice Act (Government Code Se ctions 12900, et seq.) Contractor agrees that a finding by the State Fair Employment Practices Commission that Contractor has engaged during the term of this Contract in any unlawful employment practice shall be deemed a breach of this Contract and Contra ctor shall pay to City $500.00 liquidated damages for each such breach committed under this Contract.
12. Contractor also agrees that for contracts in excess of $30,000 that apprentices will be employed without discrimination in an approved program in a ratio established in the apprenticeship standards of the craft involved (Sections 1777.5 and 1777.6, Labor Code of California). Contractors who willfully fail to comply will be denied the right to bid on public projects for a period of six months in addition to other penalties provided by law.
13. This Contract shall not be assignable by Contractor without the written consent of City.
14. Contractor shall notify the City Engineer (in writing) forthwith when the Contract is deemed completed.
15. In accepting this Contract, Contractor certifies that no member or officer of the firm or corporation is an officer or employee of the City except to the extent permitted by law.
16. Contractor certifies that it is the holder of any necessary California State Co ntractor's License and authorized to undertake the Work. Contractor must, at Contractor’s sole expense, obtain all necessary permits and licenses required for the Work, and give all necessary notices and pay all fees and taxes required by law, including, without limitation, any business license tax imposed by City. Contractor represents and declares to Agency that it has all licenses, permits, qualifications and approvals of whatever nature which are legally required to practice its profession.
17. The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the contract and/or is paying only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract.
18. The Contractor shall maintain and preserve all such records for a period of at least three years after termination of the Contract.
19. The Contractor shall maintain all such records in the City of Cathedral City. If not, the Contractor shall, upon request, promptly deliver the records to the City or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than at City offices including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.
20. In entering into this Contract or a contract with a subcontractor to supply goods, services, or materials pursuant to this Contract, Contractor and any or subcontractor is deemed to have offered and agreed to assign to City all rights, title, and interest in and to all cau ses of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700 of Part 2 of Division 7 of the California Business and Professions Code), arising from purchases of goods, services, or materials for the Contract.
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Attachment: Contract - Elecnor Belco Electric, Inc. (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
Agreement 1300-3
This assignment will be deemed made and will become effective at the time City tenders final payment to Contractor, without further acknowledgement by the Parties.
IN WITNESS WHEREOF, the parties have executed this Contract as of the dates stated below.
"CITY"
CITY OF CATHEDRAL CITY,
a California municipal corporation
By:________________________________ Dated:______________________________
Charles McClendon, City Manager
ATTEST:
Dated:________________________
Tracey R. Hermosillo, CMC,
City Clerk
APPROVED AS TO FORM:
Dated: _____________________________
Eric Vail, City Attorney
“CONTRACTOR”
Dated: By: _______________________________ Name: _______________________________
Title: _______________________________
Dated: By: ____________________________ Name: ________________________________
Title: ________________________________
[CONTRACTOR SIGNATURES MUST BE NOTARIZED. IF CONTRACTOR IS A CORPORATION OR LIMITED LIABILITY COMPANY, TWO SIGNATURES MUST BE PROVIDED.]
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Attachment: Contract - Elecnor Belco Electric, Inc. (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
Faithful Performance Bond 1310-1
SECTION 1310
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on ____ , awarded to Elecnor Belco Electric, Inc., hereinafter designated as the Principal, a Contract for BID NO. B24-49E, CIP NO. 8753, HSIP CYCLE 10: PEDESTRIAN CROSSING AT RAMON ROAD NEAR CANDLEWOOOD DRIVE , and
WHEREAS, said Principal is required under the terms of said Contract to furnish a bond for the faithful performance of said Contract:
NOW, THEREFORE, we, the Principal, and _____________________________________, as Surety, are held and firmly bound unto the City in the just and full amount of ($1,071,888.00) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, tha t if said Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and faithfully perform the covenants, conditions, and agreements in the said contract and any alterations made as therein provided, on his or their part to be kept and performed, at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless, the City, its officers and agents as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and virtue.
It is acknowledged that the Contract provides for one -year guarantee period, during which time this bond remains in full force and effort.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall, in any way, affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract or to the work or to the specifications. Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
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Attachment: Contract - Elecnor Belco Electric, Inc. (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
Faithful Performance Bond 1310-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their
seals this _________ day of _________________________________, 2023 , the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its unde rsigned representative, pursuant to authority of its governing body.
__________________________________________________
Principal
(Seal)
__________________________________________________
Signature for Principal
__________________________________________________
Title of Signatory
__________________________________________________
Surety
(Seal)
__________________________________________________
Signature for Surety
__________________________________________________
Title of Signatory
__________________________________________________
Address of Surety
__________________________________________________
Phone # of Surety
__________________________________________________
Contact Person For Surety
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Attachment: Contract - Elecnor Belco Electric, Inc. (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
Payment Bond 1320-1
SECTION 1320
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on , awarded to Elecnor Belco Electric, Inc., hereinafter designated as the Principal, a Contract for BID NO. B24-49E, CIP NO. 8753, HSIP CYCLE 10: PEDESTRIAN CROSSING AT RAMON ROAD NEAR CANDLEWOOOD DRIVE and
WHEREAS, said Principal is required to furnish a bond in connection and with said Contract, providing that if said Principal, or any of it or its subcontractors shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, the Surety of this bond will pay the same to the extent hereinafter set forth:
NOW, THEREFORE, we, the Principal, and____________________________________, as Surety, are held and firmly bound unto the City in the just and full amount of ($1,071,888.00), executors, administrators, and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, it or its heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor thereon of any kind or for amount due under the Unemployment Insurance Act with respect to such work or labor, or for any amounts due, or to be withheld pursuant to Sections 18806 of the Revenue and Taxation Code of the State of California with respect to such work or labor, then said surety will pay the same in or to an amount not exceeding the amount hereinabove set forth, and also will pay in case suit is brought upon this bond, such reasonable attorney's fees to the City as shall be fixed by the court.
This bond shall insure to the benefit of any and all persons, companies, and corporations named in Section 3181 of the Civil Code of the State of Calif ornia so as to give a right of action to them or their assigns in any suit brought upon this bond.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition of the terms of the Contrac t or to the work to be performed thereunder or the specifications accompanying the same shall, in any way, affect its obligations of this bond, and it does hereby waive notice of any change, extension of time, alteration, or addition to the terms of the co ntract or to the work or to the specifications.
Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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Payment Bond 1320-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their seals this _________ day of _________________________________, 2023 , the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
__________________________________________________
Principal
(Seal)
__________________________________________________
Signature for Principal
________________________________________________
Title of Signatory
__________________________________________________
Surety
(Seal)
__________________________________________________
Signature for Surety
__________________________________________________
Title of Signatory
__________________________________________________
Address of Surety
__________________________________________________
Phone # of Surety
__________________________________________________
Contact Person For Surety
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Workers' Compensation Insurance 1330-1
SECTION 1330
WORKERS' COMPENSATION INSURANCE CERTIFICATE
In accordance with California Labor Code Section 1861, prior to commencement of work on the Contract, the Contractor shall sign and file with the City the following certification:
"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."
______________________________________________
Signature
______________________________________________
Title
______________________________________________
Date
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Liability & Insurance Requirements 1340-1
SECTION 1340
LIABILITY AND INSURANCE REQUIREMENTS
1.0 INDEMNIFICATION
Contractor shall defend, indemnify and hold harmless the City, City Council and each member thereof, and every officer, employee and agent of City, from any claim, demand, damage, liability, loss, cost or expense (including, without limitation, attorney’s fees and costs) arising from any intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of the Contractor, or any of the Contractor'’ employees, or any of its subcontractors arising out of work under this Contract.
The City does not, and shall not, waive any rights that it may have against Contractor, any of the Contractor’s employees, or any of its subcontractors under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Contract. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described herein. The City will not be liable for any accident, loss, or damage to the work prior to its completion and acceptance.
2.0 INSURANCE REQUIREMENTS
2.1 General
After award of Contract, the Contractor shall promptly obtain, at its own expense, all the insurance required by Paragraph 1340-2.0, INSURANCE REQUIREMENTS, and shall submit coverage verification for review and approval by the City upon execution of the Contract.
The Notice to Proceed with the Work under this Contract will not be issued, and the Contractor shall not commence work, until such insurance has been approved by the City. The Contractor shall not allow any subcontractors to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and verified by Contractor. Such insurance shall remain in full force and effect at all times during the prosecution of the Work and until the final completion and acceptance thereof.
The Notice to Proceed does not relieve the Contractor of the duty to obtain such insurance as required by Paragraph 1340-2.0 INSURANCE REQUIREMENTS.
2.2 Commercial General Liability Policy
The Contractor shall take out and maintain during the life of the Contract, a Commercial General Liability Policy, on an occurrence basis, with a minimum limit of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and pr operty damage for any one occurrence and a Two Million Dollar ($2,000,000) annual project aggregate, for all of the following:
a. Premises Operations, including Explosion, Collapse and Underground (X, C, and U) Coverage.
b. Completed Operations/Products, including X, C, and U Coverage.
c. Independent Contractors.
d. Blanket Contractual.
e. Deductible shall not exceed One Thousand Dollars ($1,000).
2.3 Commercial Business Auto Policy
The Contractor shall take out and maintain during the life of this Contract a Commercial Business Auto Policy, on an occurrence basis, with a minimum amount of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage, providing at least all of the following coverage:
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Attachment: Contract - Elecnor Belco Electric, Inc. (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
Liability & Insurance Requirements 1340-2
a. Coverage shall be applicable to any and all leased, owned, hired, or non -owned vehicles used in pursuit of any of the activities associated with this Contract.
b. Any and all mobile equipment, including cranes, which is not covered under said Commercial Business Auto Policy shall have said coverage provided for under the Commercial General Liability Policy.
c. Deductible shall not exceed One Thousand Dollars ($1,000).
2.4 Workers' Compensation Insurance
The Contractor shall take out and maintain during the life of the Contract, Worker's Compensation and Employers' Liability insurance providing coverage for any and all employees of Contractor:
a. The required policy shall provide coverage for Workers' Compensation (Coverage A).
b. This policy shall provide coverage for One Million Dollars ($1,000,000) Employers' Liability (Coverage B).
2.5 Endorsements
All of the following endorsements are required to be made a part of the policies described in this Section hereof:
a. "The City, City employees and officers, the City Engineer, its consultants, elected officials, agents, and sub-consultants are hereby added as additional insured insofar as Work done under this Contract is concerned."
b. "This policy shall be considered primary insurance as respects any other valid and collectible insurance, including self-insured retention, the City may possess, and any other insurance the City does possess shall be considered excess insurance only."
c. "This insurance shall act for each insured, and additional insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.
d. "Thirty (30) days prior written notice of cancellation shall be given to the City. Such notice shall be sent to:
Kevin Biersack, Financial Services Director
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
2.6 Change in Terms
The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to the location identified in Paragraph 1340 -2.6.d, Endorsements. The Contractor shall be obligated to pay any extra premium for maintaining the insurance requirements specified herein.
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Attachment: Contract - Elecnor Belco Electric, Inc. (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and Scores Falcon Engineering Services, Inc. Interwest Consulting Group KOA Corporation TKE Engineering, Inc.
Rater 17 4 8 0 7 5 7 7
Rater 28 8 7 6 8 1 9 5
Rater 38 5 8 5 8 0 9 0
AVERAGE 82.3 80.3 78.7 87.3
Rankings Falcon Engineering Services, Inc. Interwest Consulting Group KOA Corporation TKE Engineering, Inc.
Rater 14 1 3 2
Rater 22 4 3 1
Rater 32 2 3 1
AVERAGE 2.7 2.3 3.0 1.3
RFQ/P ‐ Professional Construction Engineering Support Services (HSIP Cycle 10)
RFQ/P ‐ Professional Construction Engineering Support Services
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Attachment: RFQ/P Evaluations Scores and Rankings (3954 : Award Contracts for HSIP Cycle 10:
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and
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Attachment: TKE Engineering Inc. - RFQ/P Work Proposal (3954 : Award Contracts for HSIP Cycle 10: Pedestrian Crossing on Ramon Road and - 1 -
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
TKE ENGINEERING, INC.
This Agreement for Professional Services (“Agreement”) is entered into as of November 8 , 20 23 (“Effective Date”) by and between the City of Cathedral City , a municipal corporation (“City”) and TKE Engineering, Inc., a California Corporation (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by Request for Proposals, the performance of Construction Engineering Support Services for the HSIP Cycle 10: Pedestrian Crossing at Ramon Road near Candlewood Drive Project in the City of Cathedral City, Federal Project Number HSIPL-5430(037), City Project Number 8753, defined and described particularly in Section 2 of this Agreement.
B. Consultant, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was s elected by the City to perform those services.
C. Consultant was selected by the City on the basis of Consultant ’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required.
D. Pursuant to the City of Cathedral City ’s Municipal Code, City has authority to enter into this Consultant Services Agreement and the City Manager has authority to execute this Agreement.
E. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
(a) Subject to the provisions of Section 27 "Termination of Agreement" of this Agreement, the Agreement shall go into effect on the Effective Date, and Consultant shall commence work after notification to proceed by the City Contract Administration. The
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agreement shall terminate on November 8, 202 5, unless extended by c ontract amendment.
(b) Consultant is advised that any recommendation for award is not binding on City until the Agreement is fully executed and approved by City.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services. Consultant agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
(b) Schedule of Performance. The Services shall be completed pursuant to the schedule specified in Exhibit “A”. Should the Services not be completed pursuant to that schedule, the Consultant shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Consultant to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Consultant shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writ ing in accordance with Section 3 4 “Administration and Implementation” or Section 36 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. SAFETY.
(a) Consultant shall comply with OSHA regulations applicable to C onsultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by City Safety Officer and other City 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, City 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. C onsultant 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.
(c) Any subcontract entered into as a result of this agreement, shall contain all of the provisions of this Section.
(d) CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation
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of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
SECTION 5. COMPENSATION AND METHOD OF PAYMENT.
(a) The method of payment for this Agreement will be based on lump sum. The total lump sum price paid to Consultant will include compensation for all work and deliverables, including travel and equipment. No additional compensation will be paid to Consultant, unless there is a change in the scope of the work or the scope of the project.
In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between Consultant and City.
Adjustment in the total lump sum compensation will not be effective until authorized by Agreement amendment and approved by the City.
(b) Progress payments may be made monthly in arrears based on the percentage of work completed by Consultant . If Consultant fails to submit the required deliverable items according to the schedule, City shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 27 "Termination of Agreement".
(c) Consultant shall not commence performance of work or services until this Agreement has been approved by City and notification to proceed has been issued by City Contract Administrator. No payment will be made prior to approval of any work, or for any work performed prior to approval of this Agreement. (d) Consultant will be reimbursed within thirty (30) days upon receipt by City 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, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this project number and project title. Final invoice must contain the final cost and all credits due City that include any equipment purchased under the provisions of Section 11 “Equipment Purchase”. The final invoice must be submitted within sixty (60) calendar days after completion of Consultant’s work unless a later date is approved by the City. Invoices shall be mailed to the City in accordance with Section 32 “Notices”. (e) The total amount payable by City shall not exceed $51,393.00.
SECTION 6. COST PRINICPLES 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.
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(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 City. (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.
SECTION 7. 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 City’s Chief Financial Officer.
(b) Not la ter than thirty (30) days after issuance of the final audit report, Consultant, may request a review by City’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 i ts consideration by City 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, and incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, 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, state, or local government officials are allowed fully acce ss 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 City to conform to the audit or review recommendations. Consultant agrees that individual terms of cos ts identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state, or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement pursuant to Section 27 “Termination of 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 the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation.
The Cost Proposal s hall be adjusted by the Consultant and approved by the City 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
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or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement pursuant to Section 27 “Termination of Agreement” and disallowance of prior reimbursed costs. (i) During IOAI’s review of the ICR audit work papers created by the Consultant’s independent CPA, IOAI 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 IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, City 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 IOAI.
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%) of the 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 rate. (ii) If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI 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. IOAI will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
(iii) If the Consultant fails to comply with the provisions of this paragraph E, or if IOAI 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 rejection of the ICR and 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. (iv) Consultant may su bmit to City final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) IOAI has issued its final ICR review letter. The Consultant must submit its final invoice to City 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 City and the Consultant , either as a prime or subconsultant, with the same fiscal period ICR.
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SECTION 8. DISPUTES.
Prior to either party commencing any legal action under this Agreement, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other. (a) Any dispute, other than audit, concerning a quest ion of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City Manager and City Engineer , who may consider written or verbal information submitted by Consultant.
(b) Not later than 30 days after completion of all work under the Agreement, Consultant may request review by City Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. (c) Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in acc ordance with the terms of this Agreement.
SECTION 9. SUBCONTRACTING.
(a) Nothing contained in this Agreement or otherwise, shall create any contractual relation between City and any subconsultant(s), and no sub-agreement shall relieve Consultant of its responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) 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 Consultant . Consultant’s obligation to pay its subconsultant(s) is an independent obligation from City’s obligation to make payments to Consultant.
(b) Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorizat ion in accordance with Section 34 “Administration and Implementation” of this Agreement, except that, which is expressly identified in the approved Cost Proposal.
(c) Any sub-agreement 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 Consultant by City. (e) Any substitution of subconsultant(s) must be approved in writing by C ity in accordance with Section 34 “Administration and Implementation” of this Agreement in advance of assigning work to a substitute Subconsultant.
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(f) Prompt Progress Payment - Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed C onsultant on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from C onsultant or subconsultant to a subconsultant, Consultant or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
SECTION 10. RETENTION OF FUNDS.
(a) Any sub-agreement entered into as a result of this Agreement shall contain all of the provisions of this section.
(a) No retainage will be held by the City from progress payments due to Consultant. Consultants and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the City’s prior written approval. Any violation of these provisions shall subject the violating Consultant or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non- DBE subconsultants.
SECTION 11. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES. (a) Prior authorization in writing, by C ity in accordance with Section 3 4 “Administration and Implement ation” of this Agreement 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 the Consultant’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by C ity in accordance with Section 34 “Administration and Implementation” of this Agreement; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
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(c) Any equipment purchased as a result of this Agreement is subject to the following:
(i) 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, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated pursuant to Section 27 “Termination of Agreement” of this Agreement, Consultant may either keep the equipment and cr edit City 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 City procedures; and credit City 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 obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City.
(ii) 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.
SECTION 12. INSPECTION AND FINAL ACCEPTANCE.
Consultant and any subconsultant shall permit City , 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 Term of Agreement including review and inspection on a daily basis. City shall reject or finally accept Consultant’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Consultant’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Co nsultant’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 23 “Indemnification” and Section 24 “Insurance.” SECTION 13. OWNERSHIP OF DOCUMENTS.
(a) It is mutually agreed that all materials prepared by Consultant under this Agreement shall become the sole property of City, and Consultant shall have no property right therein whatsoever. Immediately upon completion, expiration or termination, City shall be entitled to, and Consultant shall deliver to City, all original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, inventories, analyses, estimates , and other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by Consultant in performing this Agreement which is not Consultant’s privileged information, as defined by law, or
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Consultant’s personnel information, along with all other property belonging exclusively to City which is in Consultant’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this Agreement must be approved in writing by City.
(b) Additionally, it is agreed that the Parties intend this to be an Agreement for services and each considers the products and results of the services to be rendered by Consultant hereunder to be work made for hire. Consultant acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City, and may be used, reused or otherwise disposed of by City without the permission of the Consultant.
(c) Nothing herein shall constitute or be construed to be any representation by Consultant that the work product is suitable in any way for any other project except the one detailed in this Agreement. Any reuse by City for another project or project location shall be at City’s sole risk. If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, inventories, analyses, estimates, or other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement, Consultant’s guarantees and warranties in Section 16 “Standard of Performance; Familiarity With Work” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, invent ories, analyses, estimates, or other documents.
(d) Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).
(e) City may permit copyrighting reports or other agreement products. If copyrights are permitted; the Agreement shall provide that the City shall have the royalty- free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
SECTION 14. CONSULTANT'S BOOKS AND RECORDS.
(a) For the purpose of determining compliance with Gov. Code § 8546.7, Consultant shall maintain any and all documents and records demonstrating or relating to Consultant’s performance of the Services. T he Consultant, Subconsultants, and City shall maintain any and all books, documents, papers, accounting records, Independent CPA Audi ted Indirect Cost Rate workpapers , ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement , including, but not limited to, the costs of administering the Agreement . Any and all such documents or records shall be maintained in accordance with generally accepted
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accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement.
All parties, including the Consultant’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the Agreement period and for three (3) years from the date of final payment under the Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Consultant’s address indicated for receipt of notices in this Agreement. The State, State Auditor, or City, shall have access to any books, records, and documents of the Consultant , Subconsultants, and the Consultant’s Independent CPA, that are pertinent to the A greement for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Consultant’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors -in-interest and authorized representatives.
SECTION 15. INDEPENDENT CONTRACTOR.
(a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant ’s exclusive direction and control.
Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Co nsultant or any of Consultant ’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
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SECTION 16. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK. (a) Consultant represents and warrants that it has the qualifi cations, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Cons ultant under this Agreement, and shall use such skill, prudence, and diligence as other members of Consultant ’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Consultants work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
(b) Consultant warrants that (1) it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement.
SECTION 17. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Consultant shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.
SECTION 18. 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 Departme nt of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this Agreement by reference pursuant to Labor Code §1773.2 and
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will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at City construction sites, at City facilities and at off -site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve City 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 Internet site at http://www.dir.ca.gov.
(d) Payroll Records
(i) 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 t he 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:
(1) The information contained in the payroll record is true and correct. (2) 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.
(ii) 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 City 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:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
(2) 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 City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the Consultant. (3) The public shall not be given access to certified payroll records by the Consultant. The Consultant is required to forward any requests for certified
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payrolls to the City Contract Administrator by both email and regular mail on the business day following receipt of the request.
(iii) Each Consultant shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
(iv) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by City 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. (v) The Consultant shall inform City 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.
(vi) 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 (1) 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 City , 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 City 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. (e) When prevailing w age 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 City.
(f) Penalty
(i) 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 City 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 of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
(ii) 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 Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to
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pay the correct rates of prevailing wages is not excusable if the Consultant or Subconsultant had knowledge of the obligations under the Labor Code. The Consultant is responsible for paying the appropriate rate, including any escalations that take place during the term of the Agreement.
(iii) 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 ther eof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Consultant or Subconsultant. (iv) 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:
(1) The Agreement executed between the Consultant and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. (2) The Consultant 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. (3) Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the Consult ant 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.
(4) 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 general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813. (v) Pursuant to Labor Code §1775, City 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. (vi) If City determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if City 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 City.
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(g) Hours of Labor
Eight (8) hours labor constitutes a legal day's wor k. The Consultant shall forfeit, as a penalty to the City, 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 i n excess of eight (8) hours 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
(i) Where either the prime Agreement or the sub- agreement exceeds thirty thousand dollars ($30,000), the Consultant and any subconsultants under him or her shall comply with all applicable re quirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
(ii) Consultants and subconsultants are required to comply 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 journey -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.
SECTION 19. NONDISCRIMINATION 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 and 2 CCR § 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 orient ation, or military and veteran status. Consultant and subconsultants shall insure that the evaluation and
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treatment of their employees and applicants for employment are free from 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 regulations or standards adopted by City 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 City 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 City shall require to ascertain compliance with this clause. (e) Consultant and its subconsultants shall give written notice of their 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.
SECTION 20. CONFLICTS OF INTEREST.
(a) Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant ’s performance of the Services. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant
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agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City may determine that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. If such a determination is made, Consultant shall file the subject Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request. (c) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involv ed in the performance of non- related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (d) City understands and acknowledges that Consultant will, perform non - related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. (e) During the term of this Agreement , the Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement or any ensuing City construction project. The Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement or any ensuing City construction project which will follow. (f) Consultant certifies that it has disclosed to City 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 City of any actual, apparent or potential conflicts of int erest 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 City ordinance or State law.
(g) 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.
(h) 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. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
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SECTION 21. 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 City employee. For breach or violation of this warranty, City 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 from this Agreement price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
SECTION 22. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All financial, statistical, personal, technical, or other data and information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consulta nt. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Consultant, its officers, employees, agen ts or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer, employee, ag ent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reim bursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
(d) Consultant shall promptly notify City should Consultant , its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, inter rogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City 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 City and to provide City 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 City to control, direct, or rewrite said response.
(e) Permission to disclose information on one occasion, or public hearing held by City relating to the Agreement, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion.
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(f) Consultant shall not comment publicly to the press or any other media regarding the Agreement or City’s actions on the same, except to City’s staff, Consultant’s own personnel involve d in the performance of this Agreement , at public hearings or in response to questions from a Legislative committee.
(g) Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by City , and receipt of City’s written permission.
(h) Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.
(i) All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity, other than City, Caltrans, and/or FHWA. All of the materials prepared or assembled by C onsultant pursuant to performance of this Agreement are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If C onsultant or any of i ts officers, employees, or subcontractors does voluntarily provide information in violation of this Agreement, City has the right to reimbursement and indemnity from C onsultant for any damages caused by C onsultant releasing the information, includi ng, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
SECTION 23. INDEMNIFICATION.
(a) Indemnification by Consultant . As provided under Civil Code Section 2782.8, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all claims. actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") to the extent same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant , its officers, agents, employees or sub-consultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement, with the understanding that in the event Claims are found by the trier of fact to have been caused by the joint or concurrent negligence of the City and its contractors and Consultants, and Consultant, damages and expenses from both indemnity and duty to defend obligations shall be borne by each party in proportion to its negligence. (b) Indemnification from Subcontractors. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub-consultant, subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance
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with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this Agreement or this section.
(c) City's Negligence. The provisions of this section do not apply to Claims occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 24. INSURANCE.
Consultant agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All ins urance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Consultant agrees to provide City with copies of required policies upon request.
SECTION 25. ASSIGNMENT.
The expertise and experience of Consultant are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Cons ultant under this Agreement. In recognition of that interest, Consultant shall 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 wr itten consent of the City.
Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 2 7 “Termination of Agreement.” City acknowledges, however, that Consultant , in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 26. CONTINUITY OF PERSONNEL.
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the Services. Consultant shall notify City of any changes in Consultant ’s staff and subcontractors, if any, assigned to perform the Services prior to a nd during any such performance. There shall be no change in Consultant’s Project Management or members of the project team, as listed in the approved Cost Proposal without prior written approval by City pursuant to Section 34 “Administration and Implementation” of this Agreement.
SECTION 27. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress.
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(b) Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant , or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant’s possession shall be returned to City.
Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 5 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 5 “Compensation and Method of Payment” of this Agreement. (e) City may temporarily suspend this Agreement, at no additional cost to City, provided that Consultant is given written notice of temporary suspension. If City gives such notice of temporary 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. (f) Notwithstanding any provisions of this Agreement , Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any breach of this Agreement by Consultant, and City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due City from Consultant is determined.
(g) In the event of termination, Consultant shall be compensated as provided for in this Agreement, except as provided in Section 11 Equipment Purchase and Other Capital Expenditures Part C.
SECTION 28. DEFAULT.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices . In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under Section 27 “Termination of Agreement.” Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
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SECTION 29. EXCUSABLE DELAYS.
Consultant shall 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 the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 30. CLAIMS FILED BY CITYS CONSTRUCTION CONTRACTOR. (a) If claims are filed by City’s construction contractor relating to work performed by Consultant ’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
(b) Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement. (c) Services of Consultant ’s personnel in connection with City ’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
SECTION 31. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Consultant in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 32. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: Charles P. McClendon, City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Consultant: TKE Engineering, Inc.
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Attn: Terry Renner, Senior Vice President
73-710 Fred Waring Drive, Suite 102
Palm Desert, CA 92260
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 33. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.
SECTION 34. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 36 “Amendment” and the City Manager’s contracting authority under the Cathedral City Municipal Code.
SECTION 35. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 36. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Cathedral City Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void. Consultant shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been issued. There shall be no change in Consultant’s Project Manager or members of the project team, as listed in the approved Cost Proposal , which is a part of this Agreement without prior written approval by City.
SECTION 37. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any
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provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 38. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 39. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or int erpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 40. 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, City has the right to annul this Agreement without liability; pay on ly 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.
SECTION 41. DEBARMENT AND SUSPENSION.
(a) The Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the Consultant or any person associated therewith in the capacity of owner, partner, director, officer or manager:
(i) Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; (ii) Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; (iii) Does not have a proposed debarment pending; and
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(iv) 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 City. 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 except ions apply, the initiating agency, and the dates of agency action. (c) Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
SECTION 42. NATIONAL LABOR RELATIONS BOARD CERTIFICATION.
In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of 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.
SECTION 43. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or wri tten, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 44. PROMPT PAYMENT FROM CITY TO CONSULTANT
The City shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from C onsultant on a professional service agreement. If the City fails to pay promptly, the City shall pay interest to the Consultant, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the City shall act in accordance with both of the following:
(1) The City shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The City must return any payment request deemed improper by the City to the Consultant as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
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SECTION 45. 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 shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 46. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF CATHEDRAL CITY TKE Engineering, Inc.
__________________________ ___________________________
Charles P. McClendon By: Terry Renner, PE, LS, QSD
City Manager Its: Senior Vice President
ATTEST:
Tracey R. Hermosillo, CMC
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: CONSULTANT’S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S
BUSINESS ENTITY.
__________________________
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or va lidity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On ____________________, 2023 ,
before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On ____________________, 2023 ,
before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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EXHIBIT "A"
SCOPE OF SERVICES
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EXHIBIT "B"
COMPENSATION
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EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Service Provider, its agents, representatives or employees. Service Provider shall procure and maintain the following scope and limits of insurance:
Only the following “marked” requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis to protect Service Provider and City against liability or claims of liability which may arise out of this Agreement in the amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of two million dollars ($2,000,000). Coverage shall be at least as broad as Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. additional insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for each person, in an amount not less than one million dollars ($1,000,000) for each accident, and property damage insurance in an amount of not less than one million dollars ($1,000,000). A combined single limit policy with aggregate limits in an amount of not less than $2,000,000 shall be considered equivalent to the said required minimum limits. Coverage shall be at least as broad as Insurance Services Office form number CA 0001 covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the approval of the City.
X Workers’ Compensation Insurance: Workers’ Compensation insurance that includes a minimum of one million dollars ($1,000,000) of employers’ liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of subrogation against the City and its respecti ve elected officials, officers, employees, agents and representatives. In the event a claim under the provisions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Service Provider participating under this Agreement, Service Provider is to defend and indemnify the City from such claim.
X Professional Liability Insurance: Professional liability insurance appropriate to the Service Provider’s profession in an amount not less than one million dollars $1,000,000 per occurrence. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon,
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arising out of or related to Services performed under this Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Service Provider’s services or the termination of this Agreement. During this additional three (3) year period, Service Provider shall annually and upon request of the City submit written evidence of this continuous coverage.
B. Other Provisions . Insurance policies required by this Agreement shall contain the following provisions:
1. All Coverages.
a. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City.
b. Insurance is to be pl aced with insurers with a current A.M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a. City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Service Provider performs; products and completed operations of Service Provider; premises owned, occupied or used by Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
b. Service Provider’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Service Provider’s insurance.
c. Service Provider’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
d. Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
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e. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Service Provider furnish City with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Service Provider shall furnish certificates and endorsements from each sub-contractor identical to those Service Provider provides.
2. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers, or the Service Provider shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Service Provider’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
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Cathedral City Page 1 of 6 Printed on 11/6/2023
Staff Report
City Council
Item No. 7.C
Meeting Date: November 8, 2023
From: John Corella, Director of Engineering/Public Works Title: Award Contracts for ATP Cycle 5: Cathedral Canyon Drive Sidewalk and Multiuse Trail and Date Palm Drive Expansion
City Council
RECOMMENDATION:
City Staff recommends the City Council:
· Award a construction contract to Riverside Construction Company, Inc., in the amount of $3,884,603 for the Active Transportation Program (ATP) Cycle 5 for Cathedral Canyon Drive Sidewalks and Multiuse Trail Project (C08505), and Date Palm Drive Expansion Project (C08508); and,
· Award a professional services agreement to Falcon Engineering Services, Inc., in the amount of $149,198.28 for professional construction engineering support services for the for the Active Transportation Program (ATP) Cycle 5 for Cathedral Canyon Drive Sidewalks and Multiuse Trail Project (C08505), and Date Palm Drive Expansion Project (C08508); and,
· Approve a fifteen percent (15%) contingency in the amount of $605,070.72 for unforeseeable construction costs; thereby bringing the total construction budget for this Project to $4,638,872; and,
· Authorize a budget amendment in the amount of $179,496 from Measure A Funds (account 243 -100-150-156-8800-8802) to the ATP Cycle 5 Project C08508; and,
· Authorize the City Manager to execute the contract and agreement documents; and,
· Authorize the City Engineer to request bonds and insurance for the Project and issue the Notice to Proceed.
BACKGROUND:
The Active Transportation Program (ATP) was created to encourage increased use of active modes of transportation, such as biking and walking. The program’s goals include increasing the number of trips accomplished by walking and biking and increasing the safety and mobility of non -motorized users. The ATP helps regional agencies achieve greenhouse gas reduction goals, enhance public health, and ensure disadvantaged communities fully share the program benefits. This allows for a broad spectrum of projects to benefit many types of active transportation users.
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Cathedral City’s ATP Cycle 5 Project includes three (3) segments connected to the downtown area that will improve accessibility to active transportation. The three segments and the improvements included in the ATP Cycle 5 Projects are listed below:
• East Palm Canyon Drive Bike Lanes , project C08504 – Signing and striping, legends, chevrons, and detector loops, previously awarded and approved by City Council on 10/11/2023
• Cathedral Canyon Drive Sidewalks and Multiuse Trail , project C08505 – Curb and gutter, sidewalk, multiuse trail, and ADA curb ramps. • Date Palm Drive Expansion South of Perez Road to East Palm Canyon Drive , project C08508 – East side roadway improvements include c urb and gutter, sidewalk, ADA curb ramps, driveway approaches, metal hand railings, catch basin, bridge widening and standing wall.
In December 2019, the City of Cathedral City (City) and the Coachella Valley Association of Governments (CVAG) entered into a Cooperative Reimbursement Agreement to work together with the City to complete shovel ready project plans for the above projects and the then, upcoming ATP Cycle 5 call for Projects. CVAG, agreed to be the lead agency and subsequently entered into a contract with KOA Corporation for engineering design services, to prepare the plans, specifications, and estimates (PS&E) for the above cited Projects.
With 95% completed plans in hand, the City submitted a n application for the ATP Cycle 5 Call for Projects in September of 2020. In April 2021, the Riverside County Transportation Commission (RCTC) notified the City that R CTC recommended the application for ATP funding under the Metropolitan Planning Organization (MPO) component.
In April 2023, the City submitted the formal Construction Allocation Request (which included the environmental, right -of-way, and the final design ( PS&E) documents) for the Project funding to be placed on the California Transportation Commission’s (CTC) Agenda for approval at its June CTC Board Meeting. In July 2023, the City received the finance and allocation letters from the CTC stating the Construction Allocation Request was approved.
Tonight’s agenda item is for the Cathedral Canyon Drive Sidewalk and Multiuse Trail (C08505) and Date Palm Drive Expansion (C08508) only.
Cathedral Canyon Drive Sidewalk and Multiuse Trail Project (C08505) The Project is located on Cathedral Canyon Drive from Canyon Shores Drive to Dinah Shore Drive. The scope of work includes removing the existing Cathedral Canyon Drive striping, reapplying new striping and signage, and incorporating the new minimum 6 - foot-wide bicycle lane along the west side of Cathedral Canyon Drive, as well as a multiuse trail on the east side of the road. This Project also includes the construction of a sidewalk (west side) , curbs, gutters, and ADA curb ramps within the limits of the Project.
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Date Palm Drive Expansion Project (C08508)
The Project is located on Date Palm Drive from East Palm Canyon Drive to Perez Road.
The scope of work includes removing the existing Date Palm Drive striping, reapplying new striping and signage, and incorporating the new minimum 6 -foot-wide bicycle lane along the east side of Date Palm Drive, including the widening of the east side of the North Cathedral City Stormwater Channel B ridge. This Project also includes the construction of new sidewalks, curbs, gutters, ADA curbs ramps, driveway approaches, and ancillary infrastructure on the east side.
DISCUSSION:
Construction Contract:
On Wednesday, September 20, 2023, the City advertised an invitation to bid, requesting qualified contractors to perform the described scope of work found in Bid No. B24 -54E, which included the Plans and Specifications for this Project. This solicitation was made available to contractors for thirty -one (31) calendar days and advertised in the following locations:
• Desert Sun – Published on September 20, 2023, and October 5, 2023 • PlanIt Print Works – From September 20, 2023, until October 19, 2023 • City’s Website - From September 20, 2023, until October 19, 2023
On October 19, 2023, the City received three (3) bid proposals for this Project. The following table ranks each qualified bidder by total price:
RANK CONTRACTOR AMOUNT
1 Riverside Construction Company, Inc. (Riverside, CA) $3,884,603 2 Granite Construction Company (Indio, CA) $4,060,604
3 Los Angeles Engineering, Inc. (Covina, CA) $6,980,000
The Bid Tabulation prepared by the Engineering Division is attached to this report for reference.
On October 23, 2023, the second lowest bidder, Granite Construction Company (Granite), submitted a bid protest to the City. City Staff and the City Attorney reviewed the facts and evidence related to the protest and found that there was no basis for the protest.
Based on the bids received, the lowest responsive and responsible bidder is Riverside Construction Company, Inc. (RCC) from Riverside, CA.
All work will be performed within the existing City right -of-way. The construction work is scheduled to start in January 2024 and is estimated to be completed by June 2025.
ENVIRONMENTAL ANALYSIS:
This Project is categorically excluded under the National Environmental Policy Act (NEPA) process for federally funded projects per 24CFR58.35 (a)(1), and Categorically
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Exempt under the California Environmental Quality Act (CEQA), Section 15301 for “Existing Facilities”.
Request for Qualifications/Proposals (RFQ/P) Construction Engineering Support Services
To ensure compliance with all State -funded ATP requirements for construction, City Staff solicited RFQ/P for Construction Engineering Support Services for the ATP Cycle 5 Project. Pursuant to State -funded ATP requirements the construction engineering support services for this Project include construction management, labor compliance monitoring and enforcement, inspections, and material testing.
The RFQ/P requested Consultant Companies to provide cost proposals that included hourly rates and/or unit costs for various services in a separate, sealed envelope, as prescribed in the proposal submittal/review requirements from Cal Trans and Federal Highway Administration (FHWA).
The RFQ/P was advertised in the Desert Sun and the City’s website on August 31, 2023. City Staff also circulated the RFQ/P to consultant companies that typically provide these services for similar projects. Consultant companies were given until September 21, 2023, twenty-two (22) days, to submit proposals.
Proposals for Construction Engineering Support Services for ATP Cycle 5 were received from the following four (4) companies:
• Anser Advisory Management, LLC. Palm Desert
• Falcon Engineering Services, Inc. Temecula
• TKE Engineering, Inc. Riverside
• Z&K Consultants, Inc. Riverside
The Proposals were reviewed by a panel consisting of three members of City Engineering Staff. The panel determined that all companies provided proposals that were responsive, qualified, and knowledgeable about the requirements for the various tasks and understanding of Cathedral City and its Projects. The rating summary of the panel’s review is attached.
The scores from the reviews ranked Falcon Engineering Services, Inc. (Falcon) with the highest ratings. Falcon submitted work proposals providing assurance that, if selected, the performance of construction engineering support tasks ordered by City Staff would be completed in a timely manner.
Following the scoring of the companies, the cost proposal of Falcon was opened and reviewed, per State/Federal requirements for evaluating proposals as the guideline. The cost proposal received from Falcon is consistent with current costs and in line with the City’s expectations for these types of services.
City Staff recommends the City Council:
• Award a construction contract to Riverside Construction Company, Inc., in the amount of $3,884,603 for the Active Transportation Program (ATP) Cycle 5 for
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Cathedral Canyon Drive Sidewalks and Multiuse Trail Project (C08505), and Date Palm Drive Expansion Project (C08508); and,
• Award a professional services agreement to Falcon Engineering Services, Inc., in the amount of $149,198.28 for professional construction engineering support services for the for the Active Transportation Program (ATP) Cycle 5 for Cathedral Canyon Drive Sidewalks and Multiuse Trail Project (C08505), and Date Palm Drive Expansion Project (C08508); and,
• Approve a fifteen percent (15%) contingency in the amount of $605 ,070.72 for unforeseeable construction costs; thereby bringing the total construction budget for this Project to $4,638,872; and,
• Authorize a budget amendment in the amount of $179 ,496 from Measure A Funds (account 243-100-150-156-8800-8802) to the Date Palm Drive Expansion Project (C08508); and,
• Authorize the City Manager to execute the contract and agreement documents; and,
• Authorize the City Engineer to request bonds and insurance for the Project and issue the Notice to Proceed.
FISCAL IMPACT:
The City was awarded a $4,383,000 ATP Grant (twenty-one percent (21%) leverag e funding) toward the submitted $5,556,000 ATP Project. The overall Project cost included environmental documentation (PA&ED), design (PS&E), right -of-way (ROW), and construction (CON) phases of the Palm Canyon Drive Bike Lanes Project (C08504), Cathedral Canyon Drive Sidewalk and Multiuse Trail Project (C08505), and Date Palm Drive Expansion Project (C08508).
The leverage funding included funds for:
• PA&ED phase in the amount of $322,000,
• PS&E phase in the amount of $402,000,
• ROW phase in the amount of $111,000, and
• CON phase in the amount $338,000.
The costs for the PA&ED, PS&E, and ROW phases of the Project were shared between CVAG and the City, in a seventy -five percent (75%) and twenty-five percent (25%) split, respectively.
After the East Palm Canyon Bike Lane project award, the remaining ATP Grant Funding in the amount of $4,121,624.00 is available for the construction of Cathedral Canyon Drive Sidewalk and Multiuse Trail Project (C08505), and Date Palm Drive Expansion Project (C08508).
With t he City being awarded an SB -821 grant for $338,000.00 to supplement the Cathedral Canyon Drive Sidewalk and Multiuse Trail Project , the available funding for the construction of these two projects is:
Grant Source Amount
ATP Grant Balance $ 4,121,376.00
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SB-821 Grant Balance $ 338,000.00
Available Funds for Construction $ 4,459,376.00
The budget required for construction and construction engineering is in the amount of $4,033,801.28. Staff is recommending a 15% contingency in the amount of $605,070.72 for unforeseeable construction costs, for a total construction cost of $4,638,872.00 shown below.
Construction and Construction Engineering Amount
Riverside Construction Co. (lowest bidder) $ 3,884,603.00 Falcon (Selected CE Consultant) $ 149,198.28
Subtotal $ 4,033,801.28
15% Contingency $ 605,070.72
TOTAL CONSTRUCTION COST $ 4,638,872.00
The balance between the available funds for construction and the total construction costs will require additional funds for construction in the amount of $179,496.
Total Construction Cost $ 4,638,872.00
Available Funds for Construction $ 4,459,376.00
Additional Funds Required $ 179,496.00
To complete the construction of these Projects, City Staff is proposing to reallocate programmed Measure A Funds (account 243-100-150-156-8800-8802) in the amount of $179,496 from the Los Gatos Drainage Improvements. By reallocating Measure A funds from programmed projects, the se two ATP Cycle 5 Projects will no longer h ave an impact on the General Fund.
FIVE-YEAR STRATEGIC PLAN:
Goal B: Community Investment
Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.
ATTACHMENTS:
Project Location - Cathedral Canyon Drive SW/Multiuse and Date Palm Drive Expansion
Bid Tabulation - ATP 5: Cathedral Canyon Drive and Date Palm Drive Contract - Riverside Construction Company, Inc.
RFQ/P Evaluations Scores and Rankings
Falcon Engineering Services, Inc. - Work Proposal
Professional Services Agreement - Falcon Engineering Services, Inc.
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Cathedral Canyon Drive Sidewalks/Multiuse Trail - Dinah Shore Dr. to Canyon Shores Dr.
A
erial View of Project Location
V
iew of Cathedral Cyn. Dr. at Dinah Shore Dr. Looking South V
iew of Cathedral Cyn. Dr. at Canyon Shore Dr. Looking North
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Attachment: Project Location - Cathedral Canyon Drive SW/Multiuse and Date Palm Drive Expansion (3955 : Award Contracts for ATP Cycle 5:
Date Palm Drive Expansion - East Palm Canyon Drive to Perez Rd.
A
erial View of Project Location
S
t. view of Date Palm Dr. at N’ly end of Big Lots Center looking North S
t. View of Date Palm Dr. at N. Cathedral Cyn. Channel Bridge looking North
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Attachment: Project Location - Cathedral Canyon Drive SW/Multiuse and Date Palm Drive Expansion (3955 : Award Contracts for ATP Cycle 5:
CITY OF CATHEDRAL CITY
ATP CYCLE 5: CATHEDRAL CANYON AND DATE PALM
Bid Tabulation/ Analysis
CITY PROJECT No.: 8505/8508
1 MOBILIZATION LS 1 $63,250.00 $63,250.00 $75,000.00 19% $75,000.00 $175,000.00 177% $175,000.00 $95,000.00 50% $95,000.00 2 TRAFFIC CONTROL LS 1 $57,500.00 $57,500.00 $129,836.00 126% $129,836.00 $137,000.00 138% $137,000.00 $157,000.00 173% $157,000.00 3 STORMWATER BEST MANAGEMENT PRACTICES (BMPs) LS 1 $23,000.00 $23,000.00 $20,000.00 -13% $20,000.00 $50,000.00 117% $50,000.00 $30,000.00 30% $30,000.00 4 CONSTRUCTION SURVEY AND MONUMENT PERPETUATION LS 1 $23,000.00 $23,000.00 $20,000.00 -13% $20,000.00 $60,000.00 161% $60,000.00 $50,000.00 117% $50,000.00 5 GRADING LS 1 $28,750.00 $28,750.00 $45,000.00 57% $45,000.00 $566,305.00 1870% $566,305.00 $190,000.00 561% $190,000.00 6 CLEARING AND GRUBBING LS 1 $23,000.00 $23,000.00 $130,000.00 465% $130,000.00 $396,000.00 1622% $396,000.00 $200,000.00 770% $200,000.00 7 REMOVE AND PROPERLY DISPOSE OF TREE/STUMP/PLANTER AND ROOTS TO 3’ BELOW FINISHED SURFACE EA 16 $1,725.00 $27,600.00 $3,000.00 74% $48,000.00 $4,000.00 132% $64,000.00 $5,000.00 190% $80,000.00 8 REMOVE AND HAUL EXISTING NATIVE (LANDSCAPE AREA) CY 640 $57.50 $36,800.00 $150.00 161% $96,000.00 $110.00 91% $70,400.00 $55.00 -4% $35,200.00 9 SAWCUT, REMOVE, HAUL, AND DISPOSE EXISTING PCC CURB AND GUTTER LF 420 $5.75 $2,415.00 $18.00 213% $7,560.00 $50.00 770% $21,000.00 $7.00 22% $2,940.00 10 SAWCUT, REMOVE, HAUL, AND DISPOSE EXISTING PCC CROSS-GUTTER, SPANDREL, BASE AND SUBGRADE FULL DEPTH, SF 3,000 $5.75 $17,250.00 $10.00 74% $30,000.00 $80.00 1291% $240,000.00 $7.00 22% $21,000.00 11 SAWCUT, REMOVE, HAUL AND DISPOSE AC, BASE, AND SUBGRADE TO 10.5 INCHES SF 5,000 $2.30 $11,500.00 $6.00 161% $30,000.00 $20.00 770% $100,000.00 $4.00 74% $20,000.00 12 SAWCUT, REMOVE, HAUL, AND DISPOSE AC (BACK OF CROSS GUTTER) SF 250 $5.75 $1,437.50 $16.00 178% $4,000.00 $100.00 1639% $25,000.00 $3.50 -39% $875.00 13 CONSTRUCT 2” AC SURFACE COURSE (PG-70-10) TON 66 $172.50 $11,385.00 $380.00 120% $25,080.00 $400.00 132% $26,400.00 $300.00 74% $19,800.00 14 CONSTRUCT 2.5” AC BASE COURSE (PG-70-10) TON 85 $143.75 $12,218.75 $310.00 116% $26,350.00 $350.00 143% $29,750.00 $300.00 109% $25,500.00 15 CONSTRUCT 6” CRUSHED AGGREGATE BASE (CAB) CY 200 $92.00 $18,400.00 $70.00 -24% $14,000.00 $140.00 52% $28,000.00 $240.00 161% $48,000.00 16 CONSTRUCT FULL DEPTH 8” AC PAVEMENT (BACK OF CROSS GUTTER) TON 12 $115.00 $1,380.00 $600.00 422% $7,200.00 $1,500.00 1204% $18,000.00 $400.00 248% $4,800.00 17 REMOVE EXISTING CURB RAMP AND CONSTRUCT CURB RAMP PER SHEET 7 DETAIL 7 AND PER CALTRANS STD NO. A88A AND A88B OVER 12-INCH MINIMUM OF 90% COMPACTED NATIVE. CASE PER PLAN.
EA 13
$6,325.00 $82,225.00 $6,500.00
3%
$84,500.00 $7,500.00
19%
$97,500.00 $3,600.00
-43%
$46,800.00
18 CONSTRUCT 6” RETAINING CURB POURED MONOLITHICALLY WITH SIDEWALK PER SPPWC DETAIL 111-5 LF 1,850 $40.25 $74,462.50 $30.00 -25% $55,500.00 $50.00 24% $92,500.00 $10.00 -75% $18,500.00 19 CONSTRUCT 12” RETAINING CURB POURED MONOLITHICALLY WITH SIDEWALK PER SPPWC DETAIL 111-5 LF 200 $57.50 $11,500.00 $50.00 -13% $10,000.00 $100.00 74% $20,000.00 $22.00 -62% $4,400.00 20 CONSTRUCT PCC SIDEWALK PER COUNTY OF RIVERSIDE STD. PLAN NO. 400 AND NO. 401 SF 41,400 $11.50 $476,100.00 $15.00 30% $621,000.00 $16.00 39% $662,400.00 $5.00 -57% $207,000.00 21 CONSTRUCT PCC TYPE A-6 CURB PER COUNTY OF RIVERSIDE STANDARD PLAN NO. 200 LF 420 $63.25 $26,565.00 $50.00 -21% $21,000.00 $100.00 58% $42,000.00 $31.00 -51% $13,020.00 22 CONSTRUCT CROSS GUTTER AND SPANDREL PER COUNTY OF RIVERSIDE STANDARD PLAN NO. 209 SF 3,000 $23.00 $69,000.00 $31.00 35% $93,000.00 $50.00 117% $150,000.00 $50.00 117% $150,000.00 23 CONSTRUCT CONCRETE SLOUGH WALL PER SHEET 8 DETAIL AND PER SPPWC PLAN 622-4 LF 380 $143.75 $54,625.00 $170.00 18% $64,600.00 $200.00 39% $76,000.00 $150.00 4% $57,000.00 24 CONSTRUCT 4” THICK DG OVER 95% COMPACTED NATIVE LS 1 $1,725.00 $1,725.00 $4,000.00 132% $4,000.00 $5,500.00 219% $5,500.00 $5,000.00 190% $5,000.00 25 RELOCATE UTILITY BOX AND COVER AND/OR ADJUST UTILITY BOX TO GRADE EA 7 $1,725.00 $12,075.00 $3,000.00 74% $21,000.00 $700.00 -59% $4,900.00 $900.00 -48% $6,300.00 26 ADJUST IRRIGATION VALVES AND PULLBOX TO GRADE LS 1 $11,500.00 $11,500.00 $29,000.00 152% $29,000.00 $10,000.00 -13% $10,000.00 $40,000.00 248% $40,000.00 27 RELOCATE UTILITIES PER RELOCATION DETAIL ON SHEET 9 (INCLUDES EXTEND
EXISTING CONDUIT AND WIRING AND CONSTRUCT FOUNDATION AND PAD PER CALTRANS STD PLAN ES-3B
)
LS 1 $34,500.00 $34,500.00 $56,000.00
62%
$56,000.00 $100,000.00
190%
$100,000.00 $65,000.00
88%
$65,000.00
28 COORDINATE ADJUST OR RELOCATE UTILITIES BY OTHERS LS 1 $11,500.00 $11,500.00 $500.00 -96% $500.00 $3,500.00 -70% $3,500.00 $2,000.00 -83% $2,000.00 29 TRAFFIC STRIPING, PAVEMENT MARKINGS, PAVEMENT MARKERS, AND SIGNS LS 1 $57,500.00 $57,500.00 $50,000.00 -13% $50,000.00 $55,000.00 -4% $55,000.00 $56,000.00 -3% $56,000.00 30 FIXED-MOUNTED DRIVER FEEDBACK SIGNS/RADAR SPEED DISPLAY EA 1 $23,000.00 $23,000.00 $31,000.00 35% $31,000.00 $50,000.00 117% $50,000.00 $35,000.00 52% $35,000.00 31 HYBRID BEACON AND FOUNDATION PER SHEET 12 EA 1 $143,750.00 $143,750.00 $220,000.00 53% $220,000.00 $250,000.00 74% $250,000.00 $230,000.00 60% $230,000.00 32 RELOCATE EXISTING STREET LIGHT AND COORDINATE WITH HOA (2 STREET LIGHTS) LS 1 $13,800.00 $13,800.00 $12,000.00 -13% $12,000.00 $30,000.00 117% $30,000.00 $12,000.00 -13% $12,000.00 1,462,713.75$ 2,081,126.00 $ 3,656,155.00 $ 1,928,135.00 $ 1 MOBILIZATION LS 1 $126,500.00 $126,500.00 $75,000.00 -41% $75,000.00 $160,000.00 26% $160,000.00 $95,000.00 -25% $95,000.00 2 TRAFFIC CONTROL LS 1 $57,500.00 $57,500.00 $154,000.00 168%
$154,000.00 $264,000.00
359%
$264,000.00 $167,000.00
190%
$167,000.00
3 STORMWATER BEST MANAGEMENT AND PRACTICES (BMPS) LS 1 $23,000.00 $23,000.00 $15,000.50 -35% $15,000.50 $40,000.00 74% $40,000.00 $30,000.00 30% $30,000.00 4 CONSTRUCTION STATION AND MONUMENT PERPETUATION LS 1 $23,000.00 $23,000.00 $28,000.00 22% $28,000.00 $50,000.00 117% $50,000.00 $95,000.00 313% $95,000.00 5 GRADING LS 1 $23,000.00 $23,000.00 $15,000.00 -35% $15,000.00 $360,000.00 1465% $360,000.00 $160,000.00 596% $160,000.00 6 CLEARING AND GRUBBING (INCLUDES FENCE AND GAURDRAIL REMOVAL) LS 1 $28,750.00 $28,750.00 $20,000.00 -30% $20,000.00 $75,000.00 161% $75,000.00 $100,000.00 248% $100,000.00 7 REMOVE AND HAUL EXISTING NATIVE (LANDSCAPE AREA) CY 578 $57.50 $33,235.00 $120.00 109% $69,360.00 $150.00 161% $86,700.00 $52.00 -10% $30,056.00 8 SAWCUT, REMOVE, HAUL, AND DISPOSE EXISTING PCC CURB AND GUTTER LF 630 $5.75 $3,622.50 $20.00 248% $12,600.00 $50.00 770% $31,500.00 $9.00 57% $5,670.00 9 SAWCUT, REMOVE, HAUL, AND DISPOSE EXISTING PCC SIDEWALK SF 2,420 $5.75 $13,915.00 $4.00 -30% $9,680.00 $10.00 74% $24,200.00 $2.00 -65% $4,840.00 10 SAWCUT, REMOVE, HAUL, AND DISPOSE EXISTING PCC DRIVEWAY SF 1,665 $5.75 $9,573.75 $8.00 39% $13,320.00 $10.00 74% $16,650.00 $4.40 -23% $7,326.00 11 SAWCUT, REMOVE, HAUL, AND DISPOSE EXISTING AC PAVEMENT, SUBGRADE AND NATIVE TO DEPTH PER PLAN (INCLUDING BACK OF GUTTER) SY 2,625 $11.50 $30,187.50 $16.00 39% $42,000.00 $70.00 509% $183,750.00 $11.00 -4% $28,875.00 12 SAWCUT, REMOVE, HAUL, AND DISPOSE EXISTING PCC CURB RAMP SF 525 $5.75 $3,018.75 $4.00 -30% $2,100.00 $25.00 335% $13,125.00 $2.00 -65% $1,050.00 13 CONSTUCT 2” AC SURFACE COURSE (PG-70-10-C2) TON 220 $172.50 $37,950.00 $200.00 16% $44,000.00 $310.00 80% $68,200.00 $132.00 -23% $29,040.00 14 CONSTRUCT 2” AC BASE COURSE (PG-70-10-B) TON 220 $172.50 $37,950.00 $190.00 10% $41,800.00 $310.00 80% $68,200.00 $132.00 -23% $29,040.00 15 CONSTRUCT 4-INCH AC PAVEMENT (PG-64-16-C2) OVER 95% COMPACTED NATIVE AT BACK OF DRIVEWAY TON 3 $172.50 $517.50 $950.00 451% $2,850.00 $1,300.00 654% $3,900.00 $132.00 -23% $396.00 16 CONSTRUCT 10-INCH CEMENT STABILIZED PULVERIZED BASE AND ADD TYPE II PORTLAND CEMENT SF 17,955 $8.63 $154,861.88 $2.50 -71% $44,887.50 $4.00 -54% $71,820.00 $4.00 -54% $71,820.00 17 CONSTRUCT 8” PCC COMMERCIAL DRIVEWAY APPROACH PER CITY PLAN SECTION 200-B SF 405 $17.25 $6,986.25 $30.00 74% $12,150.00 $60.00 248% $24,300.00 $20.00 16% $8,100.00 18 CONSTRUCT 8” PCC PAVEMENT OVER 95% COMPACTED NATIVE AT BACK OF DRIVEWAY SF 95 $23.00 $2,185.00 $40.00 74% $3,800.00 $100.00 335% $9,500.00 $20.00 -13% $1,900.00 19 REMOVE EXISTING CURB RAMP AND CONSTRUCT CURB RAMP PER CALTRANS STD PLAN A88A CASE A INCLUDING CURB AND GUTTER AND SIDEWALK FROM BCR TO ECR
EA 3
$6,325.00 $18,975.00 $16,000.00
153%
$48,000.00 $10,000.00
58%
$30,000.00 $7,000.00
11%
$21,000.00
TOTAL UNIT COST UNIT COST %
COMP TOTAL
BID SCHEDULE NO. 1: CATHEDRAL CANYON DRIVE
BID SCHEDULE NO. 2: DATE PALM DRIVE
TOTAL UNIT COST UNIT COST %
COMP TOTAL UNIT COST UNIT COST %
COMP
Riverside Construction Company
UNIT COST UNIT COST %
COMP TOTAL
SUB-TOTAL BID SCHEDULE NO. 1
ITEM DESCRIPTION UNIT QTY UNIT COST
UNIT COST %
COMP UNITITEM DESCRIPTION UNIT COST %
COMP TOTAL QTY UNIT COST
Engineers Estimate
TOTAL
Los Angeles Engineering, Inc.Granite Construction Company
UNIT COST TOTAL UNIT COST
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Attachment: Bid Tabulation - ATP 5: Cathedral Canyon Drive and Date Palm Drive (3955 : Award Contracts
CITY OF CATHEDRAL CITY
ATP CYCLE 5: CATHEDRAL CANYON AND DATE PALM
Bid Tabulation/ Analysis
CITY PROJECT No.: 8505/8508
20 CONSTRUCT 4” PCC SIDEWALK PER COUNTY OF RIVERSIDE STD PLAN NO. 401 MODIFIED TO WIDTH PER PLANS SF 7,245 $11.50 $83,317.50 $10.00 -13% $72,450.00 $20.00 74% $144,900.00 $5.00 -57% $36,225.00 21 CONSTRUCT 6” PCC CURB AND GUTTER PER COUNTY OF RIVERSIDE STANDARD PLAN NO. 200 LF 1,320 $63.25 $83,490.00 $45.00 -29% $59,400.00 $80.00 26% $105,600.00 $30.00 -53% $39,600.00 22 CONSTRUCT CUTOFF WALL LF 190 $115.00 $21,850.00 $170.00 48% $32,300.00 $220.00 91% $41,800.00 $73.00 -37% $13,870.00 23 CONSTRUCT METAL HANDRAILINGS AS SHOWN ON SHEET 2, DETAIL LF 190 $69.00 $13,110.00 $122.00 77% $23,180.00 $230.00 233% $43,700.00 $230.00 233% $43,700.00 24 CONSTRUCT REMOVABLE CURB FACE PER SHEET 2 DETAIL C EA 1 $8,625.00 $8,625.00 $24,000.00 178% $24,000.00 $1,600.00 -81% $1,600.00 $12,000.00 39% $12,000.00 25 COORDINATE ADJUST TO GRADE OR RELOCATE UTILITIES BY OTHERS (CVWD WATER VALVES, WATER METERS; WATER VAULT; TS SCE PULLBOX; CABLE TEL
PEDESTALS
)
LS 1 $11,500.00 $11,500.00 $5,000.00
-57%
$5,000.00 $10,000.00
-13%
$10,000.00 $2,000.00
-83%
$2,000.00
26 REMOVE TRAFFIC SIGNAL EA 2 $17,250.00 $34,500.00 $49,000.00 184% $98,000.00 $37,000.00 114% $74,000.00 $3,500.00 -80% $7,000.00 27 REMOVE STREET LIGHT EA 1 $2,300.00 $2,300.00 $2,000.00 -13% $2,000.00 $5,300.00 130% $5,300.00 $2,500.00 9% $2,500.00 28 REMOVE TRAFFIC SIGNAL PULLBOX EA 2 $1,150.00 $2,300.00 $750.00 -35% $1,500.00 $500.00 -57% $1,000.00 $800.00 -30% $1,600.00 29 ADJUST TRAFFIC SIGNAL PULLBOX EA 1 $575.00 $575.00 $5,500.00 857% $5,500.00 $1,100.00 91% $1,100.00 $6,000.00 943% $6,000.00 30 SIGNING AND STRIPING LS 1 $23,000.00 $23,000.00 $19,000.00 -17% $19,000.00 $25,000.00 9% $25,000.00 $21,000.00 -9% $21,000.00 31 BRIDGE WIDENING LS 1 $460,000.00 $460,000.00 $850,000.00 85% $850,000.00 $1,160,000.00 152% $1,160,000.00 $810,000.00 76% $810,000.00 36 CONSTRUCT CROSS GUTTER AND SPANDREL PER COUNTY OF RIVERSIDE STANDARD PLAN NO. 209 SF 1300 $23.00 $29,900.00 $38.00 65% $49,400.00 $50.00 117% $65,000.00 $15.00 -35% $19,500.00 1,409,195.63$ 1,895,278.00 $ 3,259,845.00 $ 1,901,108.00 $ 2,871,909.38$ 3,976,404.00 $ 6,916,000.00 $ 3,829,243.00 $ 32 CONSTRUCT CATCH BASIN NO. 1 PER RCFCD STD DRAWING CB 100 AND LOCAL DEPRESSION NO. 2 PER RCFD STD DRAWING N LD201, CASE C LS 1 $17,250.00 $17,250.00 $25,000.00 45% $25,000.00 $17,000.00 -1% $17,000.00 $26,000.00 51% $26,000.00 33 CONSTRUCT JUNCTION STUCTURE NO. 1 PER RCFCD STD. NO JS226 LS 1 $11,500.00 $11,500.00 $19,000.00 65% $19,000.00 $25,000.00 117% $25,000.00 $7,200.00 51% $7,200.00 34 CONSTRUCT MANHOLE PER RCFCD STD. NO. MH251 EA 1 $1,150.00 $1,150.00 $29,000.00 2422% $29,000.00 $8,000.00 596% $8,000.00 $16,000.00 51% $16,000.00 35 CONSTUCT 24” DIA REINFORCED CONCRETE PIPE AND JOIN TO NEW MANHOLE LF 28 $862.50 $24,150.00 $400.00 -54% $11,200.00 $500.00 -42% $14,000.00 $220.00 51% $6,160.00 54,050.00$ 84,200.00 $ 64,000.00 $ 55,360.00 $ 2,925,959.38$ 4,060,604.00 $ 6,980,000.00 $ 3,884,603.00 $ SUB-TOTAL ALTERNATE BID SCHEDULE NO. 1
TOTAL ALL BID ITEMS AND ALL ALTERNATIVES
UNIT COST UNIT COST %
COMP TOTAL
SUB-TOTAL BID SCHEDULE NO. 1
SUB-TOTAL BID SCHEDULE NO. 1 AND NO. 2
ALTERNATE BID SCHEDULE NO. 1
UNIT COST UNIT COST %
COMP TOTAL UNIT COST UNIT COST %
COMP TOTAL ITEM DESCRIPTION UNIT QTY UNIT COST TOTAL
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Attachment: Bid Tabulation - ATP 5: Cathedral Canyon Drive and Date Palm Drive (3955 : Award Contracts
Agreement 1300-1
SECTION 1300
CONTRACT
THIS CONTRACT, by and between the CITY OF CATHEDRAL CITY, a municipal corporation, herein referred to as "City, and Riverside Construction Company Inc., herein referred to as, "Contractor."
W I T N E S S E T H:
In consideration of their mutual covenants, the parties hereto agree as follows:
1. Contractor shall furnish all necessary labor, material, equipment, transportation and services for BID NO. B24-54E, ATP CYCLE 5: CATHEDRAL CANYON DRIVE SIDEWALKS AND MULTIUSE TRAIL (C08505) AND DATE PALM DRIVE EXPANSION (C08508) (the “ Work”) in the City of Cathedral City, California. The Work shall be done in strict conformity with this Contract, approved Change Orders, the Invitation to Bid dated September 20, 2023, Instructions to Bidders, permits issued by the City or other agencies, the General and Specific Project Requirements, Standard Specifications, Plans, Referenced Specifications, the General Conditions, Supplementary Conditions the Contractor's Bid, and any addenda thereto (the “Contract Documents”) all of which shall be considered a part hereof as though fully set herein.
2. Contractor will comply with all Federal, State, County, and City of Cathedral City laws, regulations and policies, which are, as amended from time to time, incorporated herein by reference.
3. All work shall be done in a workman like manner and to the satisfaction of the City Engineer.
4. Time is of the essence in Contractor’s performance of the Work for this Contract. Contractor agrees to diligently pursue the performance and completion of the Work in every detail to the satisfaction of the City.
Contractor shall commence work after the issuance of a written Notice to Proceed and agrees to have all work completed within Three Hundred Sixty-Five (365) working days from the date of Notification to Proceed.
5. In consideration of said Work, City agrees to pay Contractor such sums as shall be approved by the City Engineer at lump sums and/or unit prices stated in the Contractor's Bid . The total compensation to Contractor for all Work shall not exceed Three Million Eighty-Four Thousand Six Hundred Three Dollars and Zero Cents ($3,884,603.00). All payments shall be subject to approval by the City Engineer and shall be in accordance with the terms, conditions, and procedures provided in the Contract Documents.
6. The Contractor, and any subcontractor engaged by Contractor, shall not pay less tha n the general prevailing rate for per diem wages, as determined by the State of California Department of Industrial Relations and referred to in the Invitation to Bid, to any workman employed for the work to be performed under this contract; and the Contractor shall forfeit as a penalty to the City up to Two Hundred Dollars ($200.00) for each calendar day, or fraction thereof, for every workman paid by Contractor or by any subcontractor engaged by Contractor, in violation of this provision (Sections 1770-1777, Labor Code of California).
7. Concurrently with the execution of this Contract, Contractor shall furnish bonds of a surety satisfactory to City, as provided in the Contract Documents, the cost of which shall be paid by Contractor.
8. Contractor agrees to indemnify, hold harmless, release and defend (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council and each member thereof, and its officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney's fees and costs of litigation) which in whole or in part are claimed to result from or to arise out of the usage or operation, including the malfunctioning of, or, any injury caused by, any product purchased herein; or any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its employees, representatives, subcontractors, or agents in connection with the performance of this C ontract. This agreement to indemnify includes, but is not limited to, personal injury (including death at any time) and damage to property (including, but without limitation, contract or tort or patent, copyright, trade secret or trademark infringement) s ustained by any person or persons (including, but not limited to, companies, or corporations, Contractor and its employees or agents, and members of the general public.
9. Except as otherwise required, Contractor shall concurrently with the execution of t his Contract, furnish the City satisfactory evidence of insurance of the kinds and in the amounts provided in the Contract
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Agreement 1300-2
Documents. This insurance shall be kept in full force and effect by Contractor during this entire contract and all premiums thereon shall be promptly paid by it. Each policy shall further state that it cannot be canceled without 30 days unconditional written notice to the City and shall name the City as an additional insured. Contractor shall furnish evidence of having in effect, and shall maintain Workers Compensation Insurance coverage of not less than the statutory amount or otherwise show a certificate of sel f-insurance, in accordance with the Workers Compensation laws of the State of California. Failure to maintain the required amounts and types of coverage throughout the duration of this Contract shall constitute a material breach of this Contract.
10. Contractor shall forfeit as a penalty to City $25.00 for each laborer, workman, or mechanic employed in the execution of this Contract by said Contractor, or any subcontractor under it, upon any of the work herein mentioned, for each calendar day during which such laborer, workman, or mechanic is required or permitted to work at other than a rate of pay provided by law for more than 8 hours in any one calendar day and 40 hours in any one calendar week, in violation of the provisions of Sections 1810-1815 of the Labor Code of the State of California.
11. In accepting this Contract, Contractor certifies that in the conduct of its business it does not deny the right of any individual to seek, obtain and hold employment without discrimination 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 as provided in the California Fair Employment Practice Act (Government Code Sections 12900, et seq.) Contractor agrees that a finding by the State Fair Employment Practices Commission that Contractor has engaged during the term of this Contract in any unlawful employment practice shall be deemed a breach of this Contract and Contractor shall pay to City $500.00 liquidated damages for each such breach committed under this Contract.
12. Contractor also agrees that for contracts in excess of $30,000 that apprentic es will be employed without discrimination in an approved program in a ratio established in the apprenticeship standards of the craft involved (Sections 1777.5 and 1777.6, Labor Code of California). Contractors who willfully fail to comply will be denied the right to bid on public projects for a period of six months in addition to other penalties provided by law.
13. This Contract shall not be assignable by Contractor without the written consent of City.
14. Contractor shall notify the City Engineer (in writing) forthwith when the Contract is deemed completed.
15. In accepting this Contract, Contractor certifies that no member or officer of the firm or corporation is an officer or employee of the City except to the extent permitted by law.
16. Contractor certifies that it is the holder of any necessary California State Contractor's License and authorized to undertake the Work. Contractor must, at Contractor’s sole expense, obtain all necessary permits and licenses required for the Work, and give all nece ssary notices and pay all fees and taxes required by law, including, without limitation, any business license tax imposed by City. Contractor represents and declares to Agency that it has all licenses, permits, qualifications and approvals of whatever nat ure which are legally required to practice its profession.
17. The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the contract and/or is paying only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract.
18. The Contractor shall maintain and preserve all such records for a period of at least three years after termination of the Contract.
19. The Contractor shall maintain all such records in the City of Cathedral City. If not, the Contractor shall, upon request, promptly deliver the records to the City or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than at City offices including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.
20. In entering into this Contract or a contract with a subcontractor to supply goods, services, or materials pursuant to this Contract, Contractor and any or subcontractor is deemed to have offered and agreed to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700 of Part 2 of Division 7 of the California Business and Professions Code), arising from purchases of goods, services, or materials for the Contract.
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Agreement 1300-3
This assignment will be deemed made and will become effective at the time City tenders final payment to Contractor, without further acknowledgement by the Parties.
IN WITNESS WHEREOF, the parties have executed this Contract as of the dates stated below.
"CITY"
CITY OF CATHEDRAL CITY,
a California municipal corporation
By:________________________________ Dated:______________________________
Charles McClendon, City Manager
ATTEST:
Dated:________________________
Tracey R. Hermosillo, CMC,
City Clerk
APPROVED AS TO FORM:
Dated: _____________________________
Eric Vail, City Attorney
“CONTRACTOR”
Dated: By: _______________________________ Name: _______________________________
Title: _______________________________
Dated: By: ____________________________ Name: ________________________________
Title: ________________________________
[CONTRACTOR SIGNATURES MUST BE NOTARIZED. IF CONTRACTOR IS A CORPORATION OR LIMITED LIABILITY COMPANY, TWO SIGNATURES MUST BE PROVIDED.]
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Faithful Performance Bond 1310-1
SECTION 1310
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on ____ , awarded to Elecnor Belco Electric, Inc., hereinafter designated as the Principal, a Contract for BID NO. B24-54E, ATP CYCLE 5: CATHEDRAL CANYON DRIVE S IDEWALKS AND MULTIUSE TRAIL (C 08505) AND DATE PALM DRIVE EXPANSION (C08508), and
WHEREAS, said Principal is required under the terms of said Contract to furnish a bond for the faithful performance of said Contract:
NOW, THEREFORE, we, the Principal, and _____________________________________, as Surety, are held and firmly bound unto the City in the just and full amount of ($3,884,603.00) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and faithfully perform the covenants, conditions, and agreements in the said contract and any alterations made as therein provided, on his or their part to be kept and performed, at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless, the City, its officers and agents as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and virtue.
It is acknowledged that the Contract provides for one -year guarantee period, during which time this bond remains in full force and effort.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall, in any way, affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract or to the work or to the specifications. Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Faithful Performance Bond 1310-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their
seals this _________ day of _________________________________, 2023 , the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
__________________________________________________
Principal
(Seal)
__________________________________________________
Signature for Principal
__________________________________________________
Title of Signatory
__________________________________________________
Surety
(Seal)
__________________________________________________
Signature for Surety
__________________________________________________
Title of Signatory
__________________________________________________
Address of Surety
__________________________________________________
Phone # of Surety
__________________________________________________
Contact Person For Surety
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Payment Bond 1320-1
SECTION 1320
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on , awarded to Elecnor Belco Electric, Inc., hereinafter designated as the Principal, a Contract for BID NO. B24-54E, ATP CYCLE 5: CATHEDRAL CANYON DRIVE S IDEWALKS AND MULTIUSE TRAIL (C 08505) AND DATE PALM DRIVE EXPANSION (C08508) and
WHEREAS, said Principal is required to furnish a bond in connection and with said Contract, providing that if said Principal, or any of it or its subcontractors shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, the Surety of this bond will pay the same to the extent hereinafter set forth:
NOW, THEREFORE, we, the Principal, and____________________________________, as Surety, are held and firmly bound unto the City in the just and full amount of ($3, 884,603.00), executors, administrators, and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, it or its heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor thereon of any kind or for amount due under the Unemployment Insurance Act with respect to such work or labor, or for any amounts due, or to be withheld pursuant to Sections 18806 of the Revenue and Taxation Co de of the State of California with respect to such work or labor, then said surety will pay the same in or to an amount not exceeding the amount hereinabove set forth, and also will pay in case suit is brought upon this bond, such reasonable attorney's fee s to the City as shall be fixed by the court.
This bond shall insure to the benefit of any and all persons, companies, and corporations named in Section 3181 of the Civil Code of the State of California so as to give a right of action to them or their assigns in any suit brought upon this bond.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition of the terms of the Contract or to the work to be performed thereunder or the specifi cations accompanying the same shall, in any way, affect its obligations of this bond, and it does hereby waive notice of any change, extension of time, alteration, or addition to the terms of the contract or to the work or to the specifications.
Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Payment Bond 1320-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their seals this _________ day of _________________________________, 2023 , the name and corporate seal of each corporate party being hereto affixed and these presents dul y signed by its undersigned representative, pursuant to authority of its governing body.
__________________________________________________
Principal
(Seal)
__________________________________________________
Signature for Principal
________________________________________________
Title of Signatory
__________________________________________________
Surety
(Seal)
__________________________________________________
Signature for Surety
__________________________________________________
Title of Signatory
__________________________________________________
Address of Surety
__________________________________________________
Phone # of Surety
__________________________________________________
Contact Person For Surety
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Workers' Compensation Insurance 1330-1
SECTION 1330
WORKERS' COMPENSATION INSURANCE CERTIFICATE
In accordance with California Labor Code Section 1861, prior to commencement of work on the Contract, the Contractor shall sign and file with the City the following certification:
"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."
______________________________________________
Signature
______________________________________________
Title
______________________________________________
Date
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Liability & Insurance Requirements 1340-1
SECTION 1340
LIABILITY AND INSURANCE REQUIREMENTS
1.0 INDEMNIFICATION
Contractor shall defend, indemnify and hold harmless the City, City Council and each member thereof, and every officer, employee and agent of City, from any claim, demand, damage, liability, loss, cost or expense (including, without limitation, attorney’s fees and costs) arising from any intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of the Contractor, or any of the Contractor'’ employees, or any of its subcontractors arising out of work under this Contract.
The City does not, and shall not, waive any rights that it may have against Contractor, any of the Contractor’s employees, or any of its subcontractors under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Contract. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described herein. The City will not be liable for any accid ent, loss, or damage to the work prior to its completion and acceptance.
2.0 INSURANCE REQUIREMENTS
2.1 General
After award of Contract, the Contractor shall promptly obtain, at its own expense, all the insurance required by Paragraph 1340-2.0, INSURANCE REQUIREMENTS, and shall submit coverage verification for review and approval by the City upon execution of the Contract.
The Notice to Proceed with the Work under this Contract will not be issued, and the Contractor shall not commence work, until such insurance has been approved by the City. The Contractor shall not allow any subcontractors to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and verified by Contractor. Such insurance shall remain in full force and effect at all times during the prosecution of the Work and until the final completion and acceptance thereof.
The Notice to Proceed does not relieve the Contractor of the duty to obtain such insurance as required by Paragraph 1340-2.0 INSURANCE REQUIREMENTS.
2.2 Commercial General Liability Policy
The Contractor shall take out and maintain during the lif e of the Contract, a Commercial General Liability Policy, on an occurrence basis, with a minimum limit of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage for any one occurrence and a Two Million Dollar ($2,000,000) annual project aggregate, for all of the following:
a. Premises Operations, including Explosion, Collapse and Underground (X, C, and U) Coverage.
b. Completed Operations/Products, including X, C, and U Coverage.
c. Independent Contractors.
d. Blanket Contractual.
e. Deductible shall not exceed One Thousand Dollars ($1,000).
2.3 Commercial Business Auto Policy
The Contractor shall take out and maintain during the life of this Contract a Commercial Business Auto Policy, on an occurrence basis, with a minimum amount of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage, providing at least all of the following coverage:
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm
Liability & Insurance Requirements 1340-2
a. Coverage shall be applicable to any and all leased, owned, hired, or non- owned vehicles used in pursuit of any of the activities associated with this Contract.
b. Any and all mobile equipment, including cranes, which is not covered under said Commercial Business Auto Policy shall have said coverage provided for under the Commercial General Liability Policy.
c. Deductible shall not exceed One Thousand Dollars ($1,000).
2.4 Workers' Compensation Insurance
The Contractor shall take out and maintain during the life of the Contract, Worker's Compensation and Employers' Liability insurance providing coverage for any and all employees of Contractor:
a. The required policy shall provide coverage for Workers' Compensation (Coverage A).
b. This policy shall provide coverage for One Million Dollars ($1,000,000) Employers' Liability (Coverage B).
2.5 Endorsements
All of the following endorsements are required to be made a part of the policies described in this Section hereof:
a. "The City, City employees and officers, the City Engineer, its consultants, elected officials, agents, and sub-consultants are hereby added as additional insured insofar as Work done under this Contract is concerned."
b. "This policy shall be considered p rimary insurance as respects any other valid and collectible insurance, including self-insured retention, the City may possess, and any other insurance the City does possess shall be considered excess insurance only."
c. "This insurance shall act for each insured, and additional insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.
d. "Thirty (30) days prior written notice of cancellation shall be given to t he City. Such notice shall be sent to:
Kevin Biersack, Financial Services Director
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
2.6 Change in Terms
The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to the location identified in Paragraph 1340 -2.6.d, Endorsements. The Contractor shall be obligated to pay any extra premium for maintaining the insurance requirements specified herein.
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Attachment: Contract - Riverside Construction Company, Inc. (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date Palm Scores Anser Advisory Management, LLC. Falcon Engineering Services, Inc. TKE Engineering, Inc. Z&K Consultants, Inc.
Rater 18 0 9 0 8 5 7 0
Rater 27 9 9 1 8 6 7 5
Rater 37 1 8 2 7 6 7 0
AVERAGE 76.7 87.7 82.3 71.7
Rankings Anser Advisory Management, LLC. Falcon Engineering Services, Inc. TKE Engineering, Inc. Z&K Consultants, Inc.
Rater 13 1 24
Rater 23 1 24
Rater 33 1 24
AVERAGE 3.0 1.0 2.0 4.0
RFQ/P ‐ Professional Construction Engineering Support Services (ATP Cycle 5)
RFQ/P ‐ Professional Construction Engineering Support Services
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Attachment: RFQ/P Evaluations Scores and Rankings (3955 : Award Contracts for ATP Cycle 5: Cathedral
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date
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Attachment: Falcon Engineering Services, Inc. - Work Proposal (3955 : Award Contracts for ATP Cycle 5: Cathedral Canyon Drive and Date - 1 -
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
FALCON ENGINEERING SERVICES
This Agreement for Professional Services (“Agreement”) is entered into as of November 8 , 20 23 (“Effective Date”) by and between the City of Cathedral City , a municipal corporation (“City”) and Falcon Engineering Service, a California Corporation (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by Request for Proposals, the performance of Construction Engineering Support Services for the ATP Cycle 5: Cathedral Canyon Drive Sidewalks and Multiuse Trail (C08505) and Date Palm Drive Expansion (C0850 8), defined and described particularly in Section 2 of this Agreement.
B. Consultant, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was s elected by the City to perform those services.
C. Consultant was selected by the City on the basis of Consultant ’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required.
D. Pursuant to the City of Cathedral City ’s Municipal Code, City has authority to enter into this Consultant Services Agreement and the City Manager has authority to execute this Agreement.
E. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
(a) Subject to the provisions of Section 27 "Termination of Agreement" of this Agreement, the Agreement shall go into effect on the Effective Date, and Consultant shall commence work after notification to proceed by the City Contract Administration. The
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agreement shall terminate on September 27, 2026, unless extended by c ontract amendment.
(b) Consultant is advised that any recommendation for award is not binding on City until the Agreement is fully executed and approved by City.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services. Consultant agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
(b) Schedule of Performance. The Services shall be completed pursuant to the schedule specified in Exhibit “A”. Should the Services not be completed pursuant to that schedule, the Consultant shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Consultant to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Consultant shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writ ing in accordance with Section 3 4 “Administration and Implementation” or Section 36 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. SAFETY.
(a) Consultant shall comply with OSHA regulations applicable to C onsultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by City Safety Officer and other City 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, City 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. C onsultant 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.
(c) Any subcontract entered into as a result of this agreement, shall contain all of the provisions of this Section.
(d) CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation
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of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
SECTION 5. COMPENSATION AND METHOD OF PAYMENT.
(a) The method of payment for this Agreement will be based on lump sum. The total lump sum price paid to Consultant will include compensation for all work and deliverables, including travel and equipment. No additional compensation will be paid to Consultant, unless there is a change in the scope of the work or the scope of the project.
In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between Consultant and City.
Adjustment in the total lump sum compensation will not be effective until authorized by Agreement amendment and approved by the City.
(b) Progress payments may be made monthly in arrears based on the percentage of work completed by Consultant . If Consultant fails to submit the required deliverable items according to the schedule, City shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 27 "Termination of Agreement".
(c) Consultant shall not commence performance of work or services until this Agreement has been approved by City and notification to proceed has been issued by City Contract Administrator. No payment will be made prior to approval of any work, or for any work performed prior to approval of this Agreement. (d) Consultant will be reimbursed within thirty (30) days upon receipt by City 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, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this project number and project title. Final invoice must contain the final cost and all credits due City that include any equipment purchased under the provisions of Section 11 “Equipment Purchase”. The final invoice must be submitted within sixty (60) calendar days after completion of Consultant’s work unless a later date is approved by the City. Invoices shall be mailed to the City in accordance with Section 32 “Notices”. (e) The total amount payable by City shall not exceed $149,198.28.
SECTION 6. COST PRINICPLES 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.
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(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 City. (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.
SECTION 7. 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 City’s Chief Financial Officer.
(b) Not la ter than thirty (30) days after issuance of the final audit report, Consultant, may request a review by City’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 i ts consideration by City 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, and incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, 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, state, or local government officials are allowed fully acce ss 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 City to conform to the audit or review recommendations. Consultant agrees that individual terms of cos ts identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state, or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement pursuant to Section 27 “Termination of 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 the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation.
The Cost Proposal s hall be adjusted by the Consultant and approved by the City 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
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or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement pursuant to Section 27 “Termination of Agreement” and disallowance of prior reimbursed costs. (i) During IOAI’s review of the ICR audit work papers created by the Consultant’s independent CPA, IOAI 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 IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, City 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 IOAI.
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%) of the 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 rate. (ii) If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI 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. IOAI will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
(iii) If the Consultant fails to comply with the provisions of this paragraph E, or if IOAI 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 rejection of the ICR and 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. (iv) Consultant may su bmit to City final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) IOAI has issued its final ICR review letter. The Consultant must submit its final invoice to City 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 City and the Consultant , either as a prime or subconsultant, with the same fiscal period ICR.
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SECTION 8. DISPUTES.
Prior to either party commencing any legal action under this Agreement, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other. (a) Any dispute, other than audit, concerning a quest ion of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City Manager and City Engineer , who may consider written or verbal information submitted by Consultant.
(b) Not later than 30 days after completion of all work under the Agreement, Consultant may request review by City Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. (c) Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in acc ordance with the terms of this Agreement.
SECTION 9. SUBCONTRACTING.
(a) Nothing contained in this Agreement or otherwise, shall create any contractual relation between City and any subconsultant(s), and no sub-agreement shall relieve Consultant of its responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) 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 Consultant . Consultant’s obligation to pay its subconsultant(s) is an independent obligation from City’s obligation to make payments to Consultant.
(b) Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorizat ion in accordance with Section 34 “Administration and Implementation” of this Agreement, except that, which is expressly identified in the approved Cost Proposal.
(c) Any sub-agreement 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 Consultant by City. (e) Any substitution of subconsultant(s) must be approved in writing by C ity in accordance with Section 34 “Administration and Implementation” of this Agreement in advance of assigning work to a substitute Subconsultant.
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(f) Prompt Progress Payment - Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed C onsultant on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from C onsultant or subconsultant to a subconsultant, Consultant or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
SECTION 10. RETENTION OF FUNDS.
(a) Any sub-agreement entered into as a result of this Agreement shall contain all of the provisions of this section.
(a) No retainage will be held by the City from progress payments due to Consultant. Consultants and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the City’s prior written approval. Any violation of these provisions shall subject the violating Consultant or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non- DBE subconsultants.
SECTION 11. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES. (a) Prior authorization in writing, by C ity in accordance with Section 3 4 “Administration and Implement ation” of this Agreement 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 the Consultant’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by C ity in accordance with Section 34 “Administration and Implementation” of this Agreement; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
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(c) Any equipment purchased as a result of this Agreement is subject to the following:
(i) 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, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated pursuant to Section 27 “Termination of Agreement” of this Agreement, Consultant may either keep the equipment and cr edit City 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 City procedures; and credit City 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 obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City.
(ii) 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.
SECTION 12. INSPECTION AND FINAL ACCEPTANCE.
Consultant and any subconsultant shall permit City , 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 Term of Agreement including review and inspection on a daily basis. City shall reject or finally accept Consultant’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Consultant’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Co nsultant’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 23 “Indemnification” and Section 24 “Insurance.” SECTION 13. OWNERSHIP OF DOCUMENTS.
(a) It is mutually agreed that all materials prepared by Consultant under this Agreement shall become the sole property of City, and Consultant shall have no property right therein whatsoever. Immediately upon completion, expiration or termination, City shall be entitled to, and Consultant shall deliver to City, all original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, inventories, analyses, estimates , and other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by Consultant in performing this Agreement which is not Consultant’s privileged information, as defined by law, or
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Consultant’s personnel information, along with all other property belonging exclusively to City which is in Consultant’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this Agreement must be approved in writing by City.
(b) Additionally, it is agreed that the Parties intend this to be an Agreement for services and each considers the products and results of the services to be rendered by Consultant hereunder to be work made for hire. Consultant acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City, and may be used, reused or otherwise disposed of by City without the permission of the Consultant.
(c) Nothing herein shall constitute or be construed to be any representation by Consultant that the work product is suitable in any way for any other project except the one detailed in this Agreement. Any reuse by City for another project or project location shall be at City’s sole risk. If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, inventories, analyses, estimates, or other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement, Consultant’s guarantees and warranties in Section 16 “Standard of Performance; Familiarity With Work” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, invent ories, analyses, estimates, or other documents.
(d) Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).
(e) City may permit copyrighting reports or other agreement products. If copyrights are permitted; the Agreement shall provide that the City shall have the royalty- free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
SECTION 14. CONSULTANT'S BOOKS AND RECORDS.
(a) For the purpose of determining compliance with Gov. Code § 8546.7, Consultant shall maintain any and all documents and records demonstrating or relating to Consultant’s performance of the Services. T he Consultant, Subconsultants, and City shall maintain any and all books, documents, papers, accounting records, Independent CPA Audi ted Indirect Cost Rate workpapers , ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement , including, but not limited to, the costs of administering the Agreement . Any and all such documents or records shall be maintained in accordance with generally accepted
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accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement.
All parties, including the Consultant’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the Agreement period and for three (3) years from the date of final payment under the Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Consultant’s address indicated for receipt of notices in this Agreement. The State, State Auditor, or City, shall have access to any books, records, and documents of the Consultant , Subconsultants, and the Consultant’s Independent CPA, that are pertinent to the A greement for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Consultant’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors -in-interest and authorized representatives.
SECTION 15. INDEPENDENT CONTRACTOR.
(a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant ’s exclusive direction and control.
Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Co nsultant or any of Consultant ’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
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SECTION 16. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK. (a) Consultant represents and warrants that it has the qualifi cations, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Cons ultant under this Agreement, and shall use such skill, prudence, and diligence as other members of Consultant ’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Consultants work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
(b) Consultant warrants that (1) it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement.
SECTION 17. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Consultant shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.
SECTION 18. 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 Departme nt of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this Agreement by reference pursuant to Labor Code §1773.2 and
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will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at City construction sites, at City facilities and at off -site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve City 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 Internet site at http://www.dir.ca.gov.
(d) Payroll Records
(i) 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 t he 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:
(1) The information contained in the payroll record is true and correct. (2) 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.
(ii) 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 City 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:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
(2) 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 City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the Consultant. (3) The public shall not be given access to certified payroll records by the Consultant. The Consultant is required to forward any requests for certified
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payrolls to the City Contract Administrator by both email and regular mail on the business day following receipt of the request.
(iii) Each Consultant shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
(iv) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by City 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. (v) The Consultant shall inform City 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.
(vi) 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 (1) 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 City , 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 City 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. (e) When prevailing w age 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 City.
(f) Penalty
(i) 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 City 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 of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
(ii) 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 Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to
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pay the correct rates of prevailing wages is not excusable if the Consultant or Subconsultant had knowledge of the obligations under the Labor Code. The Consultant is responsible for paying the appropriate rate, including any escalations that take place during the term of the Agreement.
(iii) 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 ther eof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Consultant or Subconsultant. (iv) 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:
(1) The Agreement executed between the Consultant and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. (2) The Consultant 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. (3) Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the Consult ant 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.
(4) 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 general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813. (v) Pursuant to Labor Code §1775, City 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. (vi) If City determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if City 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 City.
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(g) Hours of Labor
Eight (8) hours labor constitutes a legal day's wor k. The Consultant shall forfeit, as a penalty to the City, 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 i n excess of eight (8) hours 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
(i) Where either the prime Agreement or the sub- agreement exceeds thirty thousand dollars ($30,000), the Consultant and any subconsultants under him or her shall comply with all applicable re quirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
(ii) Consultants and subconsultants are required to comply 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 journey -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.
SECTION 19. NONDISCRIMINATION 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 and 2 CCR § 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 orient ation, or military and veteran status. Consultant and subconsultants shall insure that the evaluation and
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treatment of their employees and applicants for employment are free from 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 regulations or standards adopted by City 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 City 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 City shall require to ascertain compliance with this clause. (e) Consultant and its subconsultants shall give written notice of their 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.
SECTION 20. CONFLICTS OF INTEREST.
(a) Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant ’s performance of the Services. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant
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agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City may determine that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. If such a determination is made, Consultant shall file the subject Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request. (c) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involv ed in the performance of non- related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (d) City understands and acknowledges that Consultant will, perform non - related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. (e) During the term of this Agreement , the Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement or any ensuing City construction project. The Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement or any ensuing City construction project which will follow. (f) Consultant certifies that it has disclosed to City 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 City of any actual, apparent or potential conflicts of int erest 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 City ordinance or State law.
(g) 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.
(h) 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. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
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SECTION 21. 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 City employee. For breach or violation of this warranty, City 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 from this Agreement price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
SECTION 22. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All financial, statistical, personal, technical, or other data and information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consulta nt. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Consultant, its officers, employees, agen ts or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer, employee, ag ent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reim bursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
(d) Consultant shall promptly notify City should Consultant , its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, inter rogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City 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 City and to provide City 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 City to control, direct, or rewrite said response.
(e) Permission to disclose information on one occasion, or public hearing held by City relating to the Agreement, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion.
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(f) Consultant shall not comment publicly to the press or any other media regarding the Agreement or City’s actions on the same, except to City’s staff, Consultant’s own personnel involve d in the performance of this Agreement , at public hearings or in response to questions from a Legislative committee.
(g) Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by City , and receipt of City’s written permission.
(h) Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.
(i) All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity, other than City, Caltrans, and/or FHWA. All of the materials prepared or assembled by C onsultant pursuant to performance of this Agreement are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If C onsultant or any of i ts officers, employees, or subcontractors does voluntarily provide information in violation of this Agreement, City has the right to reimbursement and indemnity from C onsultant for any damages caused by C onsultant releasing the information, includi ng, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
SECTION 23. INDEMNIFICATION.
(a) Indemnification by Consultant . As provided under Civil Code Section 2782.8, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all claims. actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") to the extent same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant , its officers, agents, employees or sub-consultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement, with the understanding that in the event Claims are found by the trier of fact to have been caused by the joint or concurrent negligence of the City and its contractors and Consultants, and Consultant, damages and expenses from both indemnity and duty to defend obligations shall be borne by each party in proportion to its negligence. (b) Indemnification from Subcontractors. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub-consultant, subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance
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with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this Agreement or this section.
(c) City's Negligence. The provisions of this section do not apply to Claims occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 24. INSURANCE.
Consultant agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All ins urance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Consultant agrees to provide City with copies of required policies upon request.
SECTION 25. ASSIGNMENT.
The expertise and experience of Consultant are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Cons ultant under this Agreement. In recognition of that interest, Consultant shall 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 wr itten consent of the City.
Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 2 7 “Termination of Agreement.” City acknowledges, however, that Consultant , in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 26. CONTINUITY OF PERSONNEL.
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the Services. Consultant shall notify City of any changes in Consultant ’s staff and subcontractors, if any, assigned to perform the Services prior to a nd during any such performance. There shall be no change in Consultant’s Project Management or members of the project team, as listed in the approved Cost Proposal without prior written approval by City pursuant to Section 34 “Administration and Implementation” of this Agreement.
SECTION 27. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress.
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(b) Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant , or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant’s possession shall be returned to City.
Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 5 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 5 “Compensation and Method of Payment” of this Agreement. (e) City may temporarily suspend this Agreement, at no additional cost to City, provided that Consultant is given written notice of temporary suspension. If City gives such notice of temporary 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. (f) Notwithstanding any provisions of this Agreement , Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any breach of this Agreement by Consultant, and City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due City from Consultant is determined.
(g) In the event of termination, Consultant shall be compensated as provided for in this Agreement, except as provided in Section 11 Equipment Purchase and Other Capital Expenditures Part C.
SECTION 28. DEFAULT.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices . In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under Section 27 “Termination of Agreement.” Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
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SECTION 29. EXCUSABLE DELAYS.
Consultant shall 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 the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 30. CLAIMS FILED BY CITYS CONSTRUCTION CONTRACTOR. (a) If claims are filed by City’s construction contractor relating to work performed by Consultant ’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
(b) Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement. (c) Services of Consultant ’s personnel in connection with City ’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
SECTION 31. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Consultant in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 32. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: Charles P. McClendon, City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Consultant: TKE Engineering, Inc.
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Attn: Terry Renner, Senior Vice President
73-710 Fred Waring Drive, Suite 102
Palm Desert, CA 92260
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 33. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.
SECTION 34. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 36 “Amendment” and the City Manager’s contracting authority under the Cathedral City Municipal Code.
SECTION 35. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 36. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Cathedral City Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void. Consultant shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been issued. There shall be no change in Consultant’s Project Manager or members of the project team, as listed in the approved Cost Proposal , which is a part of this Agreement without prior written approval by City.
SECTION 37. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any
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provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 38. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 39. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or int erpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 40. 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, City has the right to annul this Agreement without liability; pay on ly 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.
SECTION 41. DEBARMENT AND SUSPENSION.
(a) The Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the Consultant or any person associated therewith in the capacity of owner, partner, director, officer or manager:
(i) Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; (ii) Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; (iii) Does not have a proposed debarment pending; and
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(iv) 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 City. 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 except ions apply, the initiating agency, and the dates of agency action. (c) Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
SECTION 42. NATIONAL LABOR RELATIONS BOARD CERTIFICATION.
In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of 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.
SECTION 43. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or wri tten, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 44. PROMPT PAYMENT FROM CITY TO CONSULTANT
The City shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from C onsultant on a professional service agreement. If the City fails to pay promptly, the City shall pay interest to the Consultant, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the City shall act in accordance with both of the following:
(1) The City shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The City must return any payment request deemed improper by the City to the Consultant as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
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SECTION 45. 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 shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 46. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF CATHEDRAL CITY FALCON ENGINEERING SERVICES
__________________________ ___________________________
Charles P. McClendon By: Wael Faqih, MS, PE
City Manager Its: Senior Vice President
ATTEST:
Tracey R. Hermosillo, CMC
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: CONSULTANT’S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S
BUSINESS ENTITY.
__________________________
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or va lidity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On ____________________, 2023 ,
before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On ____________________, 2023 ,
before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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EXHIBIT "A"
SCOPE OF SERVICES
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EXHIBIT "B"
COMPENSATION
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EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Service Provider, its agents, representatives or employees. Service Provider shall procure and maintain the following scope and limits of insurance:
Only the following “marked” requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis to protect Service Provider and City against liability or claims of liability which may arise out of this Agreement in the amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of two million dollars ($2,000,000). Coverage shall be at least as broad as Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. additional insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for each person, in an amount not less than one million dollars ($1,000,000) for each accident, and property damage insurance in an amount of not less than one million dollars ($1,000,000). A combined single limit policy with aggregate limits in an amount of not less than $2,000,000 shall be considered equivalent to the said required minimum limits. Coverage shall be at least as broad as Insurance Services Office form number CA 0001 covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the approval of the City.
X Workers’ Compensation Insurance: Workers’ Compensation insurance that includes a minimum of one million dollars ($1,000,000) of employers’ liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of subrogation against the City and its respecti ve elected officials, officers, employees, agents and representatives. In the event a claim under the provisions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Service Provider participating under this Agreement, Service Provider is to defend and indemnify the City from such claim.
X Professional Liability Insurance: Professional liability insurance appropriate to the Service Provider’s profession in an amount not less than one million dollars $1,000,000 per occurrence. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon,
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arising out of or related to Services performed under this Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Service Provider’s services or the termination of this Agreement. During this additional three (3) year period, Service Provider shall annually and upon request of the City submit written evidence of this continuous coverage.
B. Other Provisions . Insurance policies required by this Agreement shall contain the following provisions:
1. All Coverages.
a. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City.
b. Insurance is to be pl aced with insurers with a current A.M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a. City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Service Provider performs; products and completed operations of Service Provider; premises owned, occupied or used by Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
b. Service Provider’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Service Provider’s insurance.
c. Service Provider’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
d. Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
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e. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Service Provider furnish City with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Service Provider shall furnish certificates and endorsements from each sub-contractor identical to those Service Provider provides.
2. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers, or the Service Provider shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Service Provider’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
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Staff Report
City Council
Item No. 7.D
Meeting Date: November 8, 2023
From: John Corella, Director of Engineering/Public Works Title: Agency Reimbursement Agreement between Coachella Valley Association of Governments and the City of Cathedral City for Design and Engineering Services of Varner Road between
Palm Drive and Date Palm Drive – Western Coachella Valley Flooding and Blowsand Project – Phase One.
City Council
RECOMMENDATION:
For the City Council to authorize the Mayor and the City Manager to execute the Agency Reimbursement Agreement by and between the Coachella Valley Association of Governments (CVAG) and the City of Cathedral City for the engineering design of Varner Road between Palm Drive and Date Palm Drive in the amount not to exceed $592,231.57; and reallocate funding for this project to the Capital Improvement Project (CIP) Fund (331).
BACKGROUND:
Initiated in 2019, shortly after the “Valetine’s Day” rainstorm event, The Coachella Valley Association of Governments (CVAG) issued a Request for Proposals (RFP) for a consultant to complete a “Flood and Blowsand Risk Assessment and Improvement Plan (Plan) for the Western Coachella Valley .” The outcome of the Plan was to identify and prioritize projects that would best fit the needs of the Western Coachella Valley during a flooding or emergency events.
Subsequently, CVAG issued a contract for the above -mentioned services to Michael Baker International, Inc. (MBI). After consultation with, and participation by, the Cities of Desert Hot Springs, Cathedral City and Palm Springs, CVAG ; MBI completed the Plan in November of 2020. The Plan was accepted by the CVAG Transportation and Executive Committees shortly thereafter. The prioritized projects of the Plan were based on emergency and evacuation access, traffic volumes and stormwater flows.
The selected projects within the limits of Cathedral City are:
• Date Palm Drive from I-10 to Varner Road; and,
• Varner Road from Mountain View Road to Date Palm Drive.
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On July 6, 2022, CVAG staff issued a Request for Proposals (RFP) for Design and Engineering Services for the Western Coachella Valley Flooding and Blowsand Projects – Phase One. The scope of work consisted of design plans to improve the local agencies roads and bridges/culvert on the above -mentioned road way segments.
Bridge/culvert structures were to be designed to convey 100 -year flood events at roadway crossings at: the Whitewater River, Chino Canyon Creek, Willow Wash and the Long Canyon Wash. The roadway design was also required to include bicycle lanes and mitigation measures/improvements for blowsand events.
On August 16, 2022, CVAG received one (1) proposal from Michael Baker International, Inc. (MBI), for the Design and Engineering Services for the Western Coachella Valley Flooding and Blowsand Projects – Phase One. The proposal was reviewed by a project development team consisting of staff members from CVAG and the cities of Desert Hot Springs, Palm Springs, and Cathedral City.
In coordination with CVAG Staff, City Staff recommended removing the segment of the Date Palm Drive from I -10 to Varner from the MBI proposal, which in turn triggered City Staff to formally make a request to CVAG to process an amendment (Amendment No. 1) to the 2013 Reimbursement Agreement with the City for the design and construction of Date Palm from I-10 to Varner.
Amendment No. 1 to the Reimbursement Agreement with CVAG for the improvements of Date Palm Drive between I -10 and Varner Road was approved by the City Council at the Council Meeting of June 28, 2023. This Amendment No.1 covers for additional cost of the Project’s final design including the improvements required at the Long Canyon Wash crossing, adding four (4) more travel lanes, curb and gutter, sidewalk(s) and bicycle lanes, utility relocations and signalizing the intersection of Date Palm Drive and Varner Road.
In conjunction with all the above, Cathedral City Staff worked with CVAG Staff to modify MBI’s Flooding and Blowsand Plan proposal to exclude the design work included in Amendment No. 1, cited above; and swap in additional design work to include expanding the project’s Varner Road design limits to Varner Road from Palm Drive to Date Palm Drive. (Note: this 3.7-mile segment of Varner Road from Palm Drive to Date Palm Drive is already utilized as an I-10 bypass during flooding and emergency events , most recently during the Tropical Storm Hilary event.) A map of the proposed design limits is attached.
MBI subsequently submitted an updated proposal for the Design and Engineering of Varner Road between Palm Drive and Date Palm Drive (Project). The scope of work for this Project is to complete the ultimate design for this segment of Varner Road including the design of the major drainage under -crossings, bicycle lanes and traffic signals improvements. The updated proposal and scope of work were reviewed and accepted by CVAG and Cathedral City Staff.
On September 25, 2023, CVAG executed a Reimbursement Agreement with the City for the Design and Engineering of Varner Road between Palm Drive and Date Palm Drive Western Coachella Valley Flooding and Blowsand Project – Phase One (Project). The
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Reimbursement Agreement is attached to this report.
DISCUSSION:
Under CVAG's policy of funding eligible projects with member jurisdictions, effective January 1, 2007, the member jurisdiction(s) will be responsible for paying twenty-five percent (25%) of the project costs (the Local Share), as well as any ineligible project costs, and CVAG will be responsible for seventy-five percent (75%) of eligible project costs (the Regional Share).
The estimated total cost for professional design and engineering services for Varner Road between Palm Drive and Date Palm Drive is in the amount of $2,368,926.27.
Therefore, Cathedral City’s share of the Project cost is in the amount not -to-exceed $592.231.57, representing 25% of the anticipated Local Share of the project costs.
Overall, the completed design of the Project will provide the City with a number of items.
First, once the design of the roadway is completed, it will provide information on what portions of the roadway will require right of way acquisition. From this information staff can start looking at costs and/or means to secure the necessary right of way. Second, the completed design will provide a more comprehensive “Engineers Estimate” for the construction of the improvements. Third, the environmental documentation necessary to construct the Project will be completed and specific stormwater stream crossing permits will be secured. Lastly, and most importantly, the completed plans will be very attractive to grant program reviewers looking for shovel ready projects when the call for projects is released.
Staff is requesting City Council authorize the Mayor and the City Manager to execute the Agency Reimbursement Agreement by and between the Coachella Valley Association of Governments (CVAG) and the City of Cathedral City for the engineering design of Varner Road between Palm Drive and Date Palm Drive in the amount not to exceed $592,231.57; and reallocate funding for this project. The Capital Improvement Project (CIP) Plan identifies $750,000 from the General Fund for this project, currently shown as $375,000 in FY 2023/2024 and $ 375,000 in FY 2024/2025. Approval of this action will instead authorize amounts of $180,000 in FY 2023 /2024 and $412,231.57 in FY 2024/2025 resulting in an amended project total of $592,231.57 . The overall savings for this phase of the project will be $157,768.43 . Financial Services has identified RDA funding eligible to use for this project , resulting i n a savings to the General Fund of $750,000 over the two-year period.
FISCAL IMPACT:
Adopted CIP FY 2023/2024 and FY 2024/2025
Fund 331 - Capital Projects show the following approved planned allocations for C0XX11 Varner Road – Palm Drive to Date Palm Drive:
Account Description Account # FY 2023/24 FY 2024/25
Design - CITY MATCH 331-100-150-156-8600-8601 $ 375,000 $ 375,000
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Agency Reimbursement Agreement
The share cost for the engineering design services of Varner Road from Palm Drive to Date Palm Drive is in the amount of not-to-exceed $592,231.57.
A budget allocation in the amounts of $180,000.00 in CIP FY 2023/ 2024 and $412,231.57 in CIP FY 2024/ 2025 from CIP Fund (331 -100-150-156-8600-8601) is required to enter into the Agency Reimbursement Agreement for the engineering design services of the C0XX11 Varner Road – Palm Drive to Date Palm Drive Project.
FIVE-YEAR STRATEGIC PLAN:
Goal B: Community Investment
Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.
ATTACHMENTS:
Varner Road - MAP
Adopted CIP FY 2023-24 - FY 2024-25
CVAG-22-022-01 Amend No. 1 -MBI- finalv2 - signed
Agency Reimbursement Agreement -CVAG
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Attachment: Varner Road - MAP (3433 : Reimbursement Agreement with CVAG for Design and CAPITAL IMPROVEMENT PROJECT (CIP) PLAN – PROJECT DETAIL FY 2023/2024 FY 2024/2025 FY 2025/2026 FY 2026/2027 FY 2027/2028 Project Title Project String Account Number
Remaining
Encumbrances
Proposed
Budget
Proposed
Budget
Proposed
Budget
Proposed
Budget
Proposed
Budget
NEW PROJECTS
LANDAU PUBLIC ALLEYWAY RECONSTRUCTION C0XXX1-CIP-DESIGN-RMRA-SB1 248-100-150-156-8600-8601- - 70,000 - - - - LANDAU PUBLIC ALLEYWAY RECONSTRUCTION C0XXX1-CIP-CONSTRUCT-RMRA-SB1 248-100-150-156-8800-8802- - 830,000 - - - - WHITEWATER AREA ST IMPROVEMENT BETWEEN 33RD AVE
AND ORTEGA RD C0XXX2-CIP-CONSTRUCT-RMRA-SB1 248-100-150-156-8800-8802- - - 270,000 - - - WHITEWATER AREA ST IMPROVEMENT BETWEEN 33RD AVE
AND ORTEGA RD C0XXX2-CIP-CONSTRUCT-CDBG- 251-100-150-156-8800-8802- - - 480,000 - - -
WHITEWATER AREA ST IMPROVEMENT BETWEEN ORTEGA RD
AND DINAH SHORE DRIVE C0XXX2-CIP-CONSTRUCT-GEN FUND- 100-100-150-156-8800-8802- - - - - - 750,000 OCOTILLO SQUARE NEIGHBORHOOD STREETS DESIGN C0XXX3-CIP-DESIGN-GEN FUND- 100-100-150-156-8600-8601- - - 170,000 - - - VICTORIA DRIVE NEIGHBORHOOD REAS C0XXX4-CIP-CONSTRUCT-RMRA-SB1 248-100-150-156-8800-8802- - - - 485,000 - - AD 85-1, N/O BARISTO, S/O VEGA, E/O LANDAU, W/O AVE
LOS NINOS C0XXX5-CIP-CONSTRUCT-AD 341-100-150-156-8800-8802- - 258,085 - - - - AD 85-1, N/O BARISTO, S/O VEGA, E/O LANDAU, W/O AVE
LOS NINOS C0XXX5-CIP-CONSTRUCT-GEN FUND 100-100-150-156-8800-8802- - 60,000 - - - -
N/O BARISTO, S/O VEGA, E/O LANDAU, W/O AVE LOS NINOS
- STREET IMPROVEMENT C0XXX5-CIP-CONSTRUCT-RMRA-SB1 248-100-150-156-8800-8802- - - - 365,000 - - AD 86-5, N/O RAMON, S/O MCCALLUM, E/O DATE PALM,
W/O SANTORO STREET IMPROVEMENT C0XXX6-CIP-CONSTRUCT-AD 344-100-150-156-8800-8802- - 555,271 - - - -
N/O RAMON, S/O MCCALLUM, E/O DATE PALM, W/O
SANTORO - STREET IMPROVEMENT C0XXX6-CIP-CONSTRUCT-RMRA-SB1 248-100-150-156-8800-8802- - - - - 915,000 -
PANORAMA PARK AREA STREET IMPROVEMENTS AVENIDA
MARAVILLA AND AVENIDA LA VISTS C0XXX7 -CIP-CONSTRUCT-RMRA-SB1 248-100-150-156-8800-8802- - - - - - 550,000 DA VALL PAVEMENT REHAB S/O RAMON C0XXX8-CIP-DESIGN-MEASURE A- 243-100-150-156-8600-8601- - 30,000 - - - - DA VALL PAVEMENT REHAB S/O RAMON C0XXX8-CIP-CONSTRUCT-MEASURE A- 243-100-150-156-8800-8802- - 320,000 - - - - EAST PALM CYN - PEREZ RD TO AUTO CENTER DR C0XXX9-CIP-CONSTRUCT-MEASURE A- 243-100-150-156-8800-8802- - 200,000 - - - - EAST PALM CYN REAS C0XXX9-CIP-CONSTRUCT-GEN FUND- 100-100-150-156-8800-8802- - 350,000 - - - - CYPRESS RD/SANTORO DR DRAIN IMPROVEMENT C0XX10-CIP-CONSTRUCT-GEN FUND- 100-100-150-156-8800-8802- - 80,000 - - - - VARNER RD PALM DRIVE TO DATE PALM DRIVE C0XX11-CIP-DESIGN-GEN FUND- 100-100-150-156-8600-8601- - 375,000 375,000 - - - VARNER RD PALM DRIVE TO DATE PALM DRIVE C0XX11-CIP-DESIGN-CVAG- 331-100-150-156-8600-8601- - 1,125,000 1,125,000 - - - CATH CYN CHANNEL EAST MULTIMODAL PATH C0XX12-CIP-DESIGN-GEN FUND- 100-100-150-156-8600-8601- - 220,000 - - - - CATH CYN CHANNEL EAST MULTIMODAL PATH C0XX12-CIP-DESIGN-AB1600- 235-100-150-156-8600-8601- - 80,000 - - - - DATE PALM, I-10 TO VARNER C0XX13-CIP-DESIGN-CVAG- 331-100-150-156-8600-8601- - 225,000 225,000 - - - DATE PALM, I-10 TO VARNER C0XX13-CIP-DESIGN-MATCH- 100-100-150-156-8600-8601- - 87,500 87,500 - - - DATE PALM, I-10 TO VARNER C0XX13-CIP-CONSTRUCT-CVAG- 331-100-150-156-8800-8802- - - - 1,056,220 704,146 - DATE PALM, I-10 TO VARNER C0XX13-CIP-CONSTRUCT-MATCH- 100-100-150-156-8800-8802- - - - 352,073 234,716 - DATE PALM, I-10 TO VARNER LONG CYN CROSSING C0XX13-CIP-CONSTRUCT-RCFCD- 331-100-150-156-8800-8802- - - - 1,966,500 - - PAPAYA - SUNNY LN AREA REAS C0XX14-CIP-CONSTRUCT-MEASURE A- 243-100-150-156-8800-8802- - 150,000 - - - - AD 88-3, PANORAMA RD FROM AVENIDA LA VISTA TO VISTA
CHINO C0XX15-CIP-CONSTRUCT- 347-100-150-156-8800-8802- - 230,000 - - - - PANORAMA NEIGHBORHOOD REAS - STREETS TBD C0XX15-CIP-CONSTRUCT-GEN FUND- 100-100-150-156-8800-8802- - - - - 720,000 - AD 2004-02 COVE CRACK REPAIRS C0XX16-CIP-CONSTRUCT- 354-100-150-156-8800-8802- - 400,000 - - - - RIO VISTA BLOW SAND RDWAY PRESERVATION PROJECT C0XX17-CIP-ENV-R&M- 246-900-910-911-8300-8302- - 50,000 - - - - CATHEDRAL CYN, PEREZ RD TO BRIDGE IMPROVEMENTS C0XX18-CIP-CONSTRUCT-GEN FUND- 100-100-150-156-8800-8802- - - - 970,000 - - DATE PALM, FROM E PALM CYN TO GERALD FORD REAS C0XX19-CIP-CONSTRUCT-GEN FUND- 100-100-150-156-8800-8802- - - - - 90,000 - Capital Improvement Project (CIP) Plan - Project Detail 233|PAGE
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Attachment: Adopted CIP FY 2023-24 - FY 2024-25 (3433 : Reimbursement Agreement with CVAG for Contract No. CVAG-22-022-01
Project: WCV Flood and Blowsand Road Improvement
AMENDMENT NUMBER ONE
to the
MICHAEL BAKER INTERNATIONAL, INC.
DESIGN, ENGINEERING, AND ENVIRONMENTAL SERVICES CONTRACT for the
WESTERN COACHELLA VALLEY
FLOOD AND BLOWSAND ROAD IMPROVEMENT PROJECT PHASE I
This AMENDMENT NUMBER ONE is made and entered into this 25th day of September 2023, by and between the Coachella Valley Association of Governments, a California joint powers agency (CVAG), and MICHAEL BAKER INTERNATIONAL, INC.(Consultant), and is made with reference to the following background facts and circumstances. All other terms and conditions shall remain the same as stated in the original Agreementdated September 26, 2022, for Western Coachella Valley Flood and Blowsand Road Improvement Project Phase I.
1. This Amendment Number One authorizes CVAG funds in the amount not to exceed $794,786 for additional Michael Baker International (MBI) design and engineering services as outlined in Exhibit A-1. Additional Scope of Services.
2. The total amount payable under this agreement shall not exceed $5,259,417.58.
Original Contract September 26, 2022 $4,464,631.58
Amendment Number One September 25, 2023 $ 794,786.00
Total Contract not-to-exceed $5,259,417.58
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Number One to be executed by their duly authorized representatives on this date:
COACHELLA VALLEY ASSOCIATION MICHAEL BAKER INTERNATIONAL, INC
OF GOVERNMENTS
By: _______________________________ By: _______________________________ Tom Kirk, CVAG Executive Director Steve Latino, Associate Vice President Date: Date:
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Attachment: CVAG-22-022-01 Amend No. 1 -MBI- finalv2 - signed (3433 : Reimbursement Agreement with CVAG for Design and Engineering Contract No. CVAG-22-022-01
Project: WCV Flood and Blowsand Road Improvement
Attachment A-1
Michael Baker International WCV Flood and Blowsand Project Amendment No. 1
Additional Scope of Services
Flooding within the Coachella Valley at specific crossings has been an ongoing concern for years.
CVAG selected Michael Baker in 2019 to perform a study of twel ve locations throughout the Western Coachella Valley. One of the locations was the crossing of Varner Road at the Willow Wash. In 2022, Michael Baker was selected to proceed with the design of Indian Canyon Road in Palm Springs. As the project has progressed, CVAG has asked Michael Baker to include the Varner Road crossing at the Willow Wash, with the addition of the ultimate roadway widening from Date Palm Drive to Palm Drive in the City of Cathedral City. The proposed scope of work, which will be similar in nature to the scope for Indian Canyon Road, will include additional survey work as well as significant right -of-way impacts, an EIR/EIS, and supporting drainage, traffic signal designs (2 new and 1 modification), traffic control plans, and structural work to design the Varner Crossing at Willow Wash as well as Varner Road to its General Plan Ultimate configuration from Date Palm Drive to Palm Drive. Due to the timing of the work, this project will track on a different schedule than Indian Canyon Road, which is due to the timing of the biological studies needed to complete the environmental work.
MBI will expand their efforts to study blowsand mitigation that will include high-level research and analysis to further dive into potential alternatives forthe North Indian Canyon segment. Based on more recent technologies, CVAG staff and MBI believe it is prudent to expand the potential alternatives analysis to include underground tunneling, introduction of physical means for sand deflection, and the potential for covered roadways sections to mitigate sand concerns. This project is unique, in that it needs to mitigate the blowsands from entering the road, but that any solution will also mitigate the flooding that occurs along this stretch of roadway. As part of this analysis, MBI will include cost estimates for the proposed solutions, along with coordination and documentation of the poten tial environmental impacts of the proposed solutions and mitigation measures that could be acceptable to allow for the proposed improvements. MBI would also explore the opportunity to work with researchers to construct field test and evaluate empirical data to test blowsand mitigation concepts. and model the improvements to determine their impacts and effectiveness. If modeling of the site becomes a viable alternative, the cost associated with modeling will be considered additional work and will be negotiated based on the cost to complete the modeling analysis.
MBI will conduct a high -level Emergency Access Study for the City of Desert Hot Springs. The study will look at access in and out of Desert Hot Springs, in an effort to identify an all -weather corridor that would service the city during future storm events. The recent flooding caused by Tropical Storm Hilary has been noted to have severely impacted the Mission Creek Drainage and ultimately may have yielded 1,000 year storm level flows. In order to provide a resilient and continuous emergency access, MBI will utilize the 2019 Western Coachella Flooding and Blowsand Risk Assessment and Improvement Plan for Western Coachella Valley, and expan d upon its findings and recommendations. The team will coord inate with Riverside County Flood Control to obtain estimated flow rates through the region based on the recent storm and look at additional infrastructure improvements that could assist in providing un-interrupted access in the case of a significant flood ing event. Work will include coordination with regional agencies, environmental teams and City staff to determine potential impacts and mitigations of the proposed improvements. Each alternative will be analyzed for constructability and analyzed from a
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Attachment: CVAG-22-022-01 Amend No. 1 -MBI- finalv2 - signed (3433 : Reimbursement Agreement with CVAG for Design and Engineering Contract No. CVAG-22-022-01
Project: WCV Flood and Blowsand Road Improvement
cost/benefit perspective. From this, various improvements shall be proposed and cost estimated to allow the City of Desert Hot Springs to program for and potentially apply for grant funding.
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Attachment: CVAG-22-022-01 Amend No. 1 -MBI- finalv2 - signed (3433 : Reimbursement Agreement with CVAG for Design and Engineering
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