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AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
BCR CONSULTING LLC,
FOR
TROPICAL STORM HILARY VISTA CHINO PAVEMENT RECONSTRUCTION PROJECT (C08685)
This Agreement for Design Professional Se rvices (“Agreement”) is entered into as of May 14, 2025, (“Effective Date”) by and between the City of Cathedral City, a municipal corporation (“City”) and BCR Consulting LLC a Limited Liability Company (“Consultant”). City and Design Professional are sometimes hereina fter 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 the engineering and environmental services for the Tropical Storm Hilary Vista Chino Pavement Reconstruction Project, Federal Project Number ER-15Y0(015), City Project Number C08685 , defined and described particularl y in Section 2 of this Agreement.
B. Design Professional, following submission of a proposal for the performance of the services defined and descr ibed particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Design Professional was selected by the City on the basis of Design Professional’s demonstrated competence and the professiona l 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 Design Professional Se rvices Agreement and the City Manager has authority to execute this Agreement.
E. The Parties desire to formalize the selection of Design Professional for performance of those services defined and descr ibed particularly in Section 2 of this Agreement and desire that the te rms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual prom ises 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:
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SECTION 1. TERM OF AGREEMENT.
(a) Subject to the provisions of Secti on 28 "Termination of Agreement" of this Agreement, the Agreement shall go into effe ct on the Effective Date, and Consultant shall commence work after notification to pr oceed by the City Contract Administration.
The agreement shall terminate on May 14, 2026, unless extended by contract amendment.
(b) Consultant is advised that any re commendation for award is not binding on City until the Agreement is fully executed and approved by City.
SECTION 2. SCOPE OF SERVIC ES & SCHEDULE OF PERFORMANCE. (a) Scope of Services. Design Professi onal 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 Performanc e. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Design Professional sha ll be deemed to be in Default of this Agreement. The City, in its sole discretio n, may choose not to enforce the Default provisions of this Agreement and may inst ead allow Design Professional to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Design Professional shall not be com pensated 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 writing in accordance with Section 35 “Administrati on and Implementation” or Section 37 “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) Design Professional shall comply with OSHA regulatio ns applicable to Design Professional regarding necessary sa fety equipment or procedures. Design Professional shall comply with safety instructions issued by City Safety Officer and other City representatives. Desi gn Professional personnel sha ll wear hard hats and safety vests at all times while working on the construction project site. (b) Pursuant to the authority cont ained in Vehicle Code §591, City has determined that such areas ar e within the limits of the pr oject and are open to public traffic. Design Professional shall comply with all of the requir ements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicl e Code. Design Professional 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. - 3 -
(c) Any subcontract entered into as a re sult of this agreement, shall contain all of the provisions of this Section.
(d) Design Professional 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 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 Ag reement will be based on lump sum.
The total lump sum price paid to Design Pr ofessional will include compensation for all work and deliverables, including travel and equipment. No additional compensation will be paid to Design Professional, 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 su m compensation will be negotiated between Design Professional and City. Adjustment in the total lu mp sum compensation will not be effective until authorized by Agreement amendment and approved by the City. (b) Progress payments may be made m onthly in arrears based on the percentage of work completed by Design Professional. If De sign Professional fails to submit the required deliverable items according to the schedule, City shall have the right to delay payment or terminate this Agreem ent in accordance with the provisions of Section 28 "Termination of Agreement".
(c) Design Professional shall not commenc e performance of work or services until this Agreement has been approved by City and notific ation 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) Design Professional will be reimburs ed 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 Design Professional is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invo ices 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 pr ovisions of Section 12 “E quipment Purchase”. The final invoice must be submitted within sixty (60) calendar days after completion of Design Professional’s work unless a later date is approved by the City. Invoices shall be mailed to the City in accordance with Section 33 “Notices”. (e) The total amount payable by City shall not exceed Seven Thousand Four Hundred Dollars and Zero Cents ($7,400)
SECTION 6. COST PRINCIPLES A ND ADMINISTRATIVE REQUIREMENTS. - 4 -
(a) The Design Professional agrees t hat 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
(b) The Design Professional also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
(c) Any costs for which payment has been made to the Design Professional 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 Design Professional to City. (d) When a Design Professional or SubD esign Professional is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requi rements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
SECTION 7. AUDIT RE VIEW PROCEDURES.
(a) Any dispute concerning a question of fa ct arising under an interim or post audit of this Agreement that is not disposed of by Agreem ent, shall be reviewed by City’s Chief Financial Officer.
(b) Not later than thirty (30) days afte r issuance of the final audit report, Design Professional, may request a revi ew 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 its consideration by City will excuse Design Professional from full and timely per formance, in accordance with the terms of this Agreement.
(d) Design Professional and subDesign Professional Agreem ents, 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 select ed 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 re lated laws and regulations. In the instances of a CPA ICR audit work paper re view, it is Design Professional’s responsibility to ensure federal, state, or local government officials are allowed fully access to the CPA’s work papers includi ng making copies as necessary. The Agreement, Cost Proposal, and ICR shall be adjusted by Design Professional and approved by City to conform to the audit or review recommendations. Design Professional agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Design Profe ssional to incorporate audit or review recommendations, or to ensure that the f ederal, state, or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause - 5 -
for termination of the Agreem ent pursuant to Section 28 “T ermination of Agreement” and disallowance of prior reimbursed costs.
(e) Design Professional’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the I ndependent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, ma y review and/or audit and approve the CPA ICR documentation. The Cost Pr oposal shall be adjusted by the Design Professional and approved by the City to confor m to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Design Professional to incorporate the Work P aper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement pursuant to Section 28 “Terminat ion of Agreement” and disallowance of prior reimbursed costs.
(i) During IOAI’s review of the IC R audit work papers created by the Design Professional’s independent CPA, IOA I will work with the CPA and/or Design Professional 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 re view and is unable to issue a cognizant approval letter, City will reimburse the Desi gn Professional at an accepted ICR until a FAR (Federal Acquisition Regulation) comp liant 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 Offici als (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 hun dred 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 c ognizant letter per paragraph E.1. above, IOAI may require Desi gn Professional to submit a revised independent CPA- audited ICR and audit report wit hin three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the Design Professional’s and/or the independent CPA’s revisions.
(iii) If the Design Professional fails to comply with the provisions of this paragraph E, or if IOAI is st ill unable to issue a cognizant approval letter after the - 6 -
revised independent CPA audited ICR is subm itted, overhead cost reimbursement will be limited to the accepted ICR that was estab lished 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 reimburse ment purposes under this Agreement.
(iv) Design Professional may submit to City final invoice only when all of the following items have occurred: (1) IOAI a ccepts or adjusts the original or revised independent CPA audit ed 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 Design Professional must submit it s final invoice to City no late r than sixty (60) calendar days after occurrence of the last of these it ems. The accepted ICR will apply to this Agreement and all other agreements executed between City and the Design Professional, either as a pr ime or subDesign Pr ofessional, with the same fiscal period ICR.
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 dis pute amicably between them. If a dispute has not been settled after forty-five (45) day s of good-faith negotiations and as may be otherwise provided herein, then either par ty may commence legal action against the other.
(a) Any dispute, other than audit, concer ning a question of fact arising under this Agreement that is not disposed of by agreement s hall be decided by a committee consisting of City Manager and City Engineer, who may consider written or verbal information submitted by Design Professional.
(b) Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, Design Professional may request review by City Governing Board of unresolv ed 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 Design Professional from full and timely performance in accordance with the terms of this Agreement.
SECTION 9. SUBCONTRACTING.
(a) Nothing contained in this Agreem ent or otherwise, shall create any contractual relation between City and any subDesign Professional(s), and no sub- agreement shall relieve Design Professional of its responsibilities and obligations hereunder. The Design Professional agrees to be as fully responsible to City for the acts and omissions of its subDesig n Professional(s) and of pers ons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Design Profe ssional. Design Professiona l’s obligation to pay its - 7 -
subDesign Professional(s) is an independent ob ligation from City’s obligation to make payments to Design Professional.
(b) Design Professional shall perform the work contemplated with resources available within its own organ ization and no portion of the work pertinent to this Agreement shall be subcontra cted without written authorization in accordance with Section 35 “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 th is entire Agreement to be applicable to SubDesign Professionals unless otherwise noted.
(d) Design Professional shall pay its subDesign Professionals within fifteen (15) calendar days from receipt of each payment made to Design Professional by City. (e) Any substitution of subDesign Profe ssional(s) must be approved in writing by City in accordance with Section 35 “Administration and Implementation” of this Agreement in advance of assigning work to a substitute SubDesign Professional. (f) Prompt Progress Payment - De sign Professional or subDesign Professional shall pay to any subDesign Professional, not later than fifteen (15) days after receipt of each progress payment, unl ess otherwise agreed to in writing, the respective amounts allowed Design Professional on account of the work performed by the subDesign Professionals, to the extent of each subDesign Professional’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 Design Professional or subDesign Professional to a subDesign Professional , Design Professional or subDesign Professional 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 subDesign Professional, 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 addi tion to, all other remedies, either civil, administrative, or criminal. This claus e applies to both DBE and non-DBE subDesign Professionals.
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.
(b) No retainage will be held by the City from progress payments due to Design Professional. Design Professionals and subDesign Pr ofessionals are prohibited from holding retainage from subDesign Prof essionals. Any delay or postponement of - 8 -
payment may take place only for good cause and with the City’s prior written approval.
Any violation of these provisions shall su bject the violating De sign Professional or subDesign Professional to the penalties, s anctions, 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 Design Professional or subDesign Professional in the event of a di spute involving late payment or nonpayment by De sign Professional, deficient subDesign Professional performance and/or noncompliance by a subDesign Professional. This clause applies to both DBE and non-DBE subDesign Professionals.
SECTION 11. DISADVANTAGED BUSINESS ENTERPRISES (DBE).
(a) This Agreement is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in D epartment of Transportation Financial Assistance Programs”. Consultants who en ter into a federally-funded agreement will assist the City in a good faith effort to achieve California's statewide overall DBE goal. (b) The goal for DBE participation for this Agreement is 0%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (E xhibit 10-O1), or in the Consultant Contract DBE Commitment (Exhibit 10-O2) attached hereto under Exhibit B “Consideration” and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met. (c) Consultant can meet the DBE par ticipation goal by either documenting commitments to DBEs to m eet the Agreement goal, or by documenting adequate good faith efforts to meet the Agreement goal. An adequate good fa ith effort means that the Consultant must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete and submit Exhibit 15-H: DBE In formation – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
(d) DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. The City, Consultant or subconsultant shall not discriminate on the basis of race, color, nationa l origin, or sex in the per formance of this Agreement.
Consultant shall carry out applic able requirements of 49 CFR, Part 26 in the award and administration of US DOT-a ssisted agreements. Failure by Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement pursuant to Section 28 “Termination of Agreement” or such other remedy as City deems appropriate, which may include but is not limited to:
(e) Withholding monthly progress payments;
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(f) Assessing sanctions;
(g) Liquidated damages; and/or
(h) Disqualifying the Consultant fr om future bidding as non-responsible (i) A DBE firm may be terminated only with prior written approval from City and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the termination, Consult ant must meet the procedural requirements specified in 49 CFR 26.53(f). If a DBE subcons ultant is unable to perform, Consultant must make a good faith effort to replace hi m/her with another DBE subcons ultant, if the goal is not otherwise met.
(j) Consultant shall not be entitled to any payment for such work or material unless it is performed or supplied by the list ed DBE or by other forces (including those of Consultant) pursuant to prior written authorization of the City. (k) A DBE is only eligible to be count ed toward the Agreement goal if it performs a commercially useful function (CUF) on the Agreement. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the Agr eement, for negotiating price, determining quality and quantity, order ing the material and installing (where applicable), and paying for the material itself. To determine w hether a DBE is performing a CUF, evaluate the amount of work subcontracted, i ndustry practices, whether the amount the firm is to be paid under the Agreement is co mmensurate with the work it is actually performing, and other relevant factors.
(l) A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, Agreement, or project through which funds are passed in order to obtain the appearance of DBE participat ion. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
(m) If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total co st of its Agreement with its own work force, or the DBE subcontracts a greater portion of the work of the Agreement than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
(n) Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor a nd the total dollar amount actually paid each DBE or vendor, regardless of tier. The reco rds shall show the date of payment and the total dollar figure paid to all firms. DBE prim e consultants shall also show the date of - 10 -
work performed by their own forces along with the corresponding dollar value of the work.
(o) Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the form entitled, “Exhibit 17-F: Final Report-Utilization of Disadvantaged Business Enterprise (DBE), First- Tier Subconsultants”, certified correct by Consultant or Consultant’s authorized representative and shall be furnished to the City with the final invoice. Failure to pr ovide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to Consultant when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the City. (p) If a DBE subconsultant is decertifi ed during the life of the Agreement, the decertified subconsultant shall notify C onsultant in writing with the date of decertification. If a subconsultant becom es a certified DBE during the life of the Agreement, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to City within 30 days. (q) Any subcontract entered into as a resu lt of this Agreement shall contain all of the provisions of this section.
SECTION 12. EQUIPMENT PURCHASE AN D OTHER CAPITAL EXPENDITURES. (a) Prior authorization in writing, by City in accordance with Section 35 “Administration and Implementation” of this Agreement shall be required before Design Professional enters into any unbudgeted purchase order, or s ubcontract exceeding five thousand dollars ($5,000) for supplies, equipm ent, or Design Professional services.
Design Professional shall provide an evaluati on of the necessity or desirability of incurring such costs.
(b) For purchase of any item, service, or consulting work not covered in the Design Professional’s approved Cost Propos al and exceeding five thousand dollars ($5,000), with prior authorization by City in accordance with Section 35 “Administration and Implementation” of this Agreement; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified. (c) Any equipment purchased as a result of this Agreement is subject to the following:
(i) Design Professional shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acqui sition cost of five thousand do llars ($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 28 “Terminati on of Agreement” of this Agreement, Design Professional may either keep the equipment and credit City in an amount equal - 11 -
to its fair market value, or sell such equipm ent at the best price obtainable at a public or private sale, in accordance with establis hed City procedures; and credit City in an amount equal to the sales price. If Design Professional elects to keep the equipment, fair market value shall be determined at Desi gn Professional’s expense, on the basis of a competent independent appraisa l of such equipment. Appr aisals shall be obtained from an appraiser mutually agreeable to by City and Design Profe ssional, 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 require s 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 13. INSPECTION AND FINAL ACCEPTANCE.
Design Professional and any subDesign Prof essional shall permit City, the state, and the FHWA if federal partici pating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable time s during the Term of Agreement including review and inspection on a daily basis. City shall reject or finally accept Design Professional’s work within sixty (60) days afte r submitted to City. City shall reject work by a timely written expl anation, otherwise Design Professional’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 De sign Professional’s work by City shall not constitute a waiver of any of the provisions of this Agreement in cluding, but not limited to, Section 24 “Indemnification” and Section 25 “Insurance.” SECTION 14. OWNERSHIP OF DOCUMENTS.
(a) It is mutually agreed that all mate rials prepared by Design Professional under this Agreement shall become the sole property of City, and Design Professional shall have no property right therein whatsoever. Imm ediately upon completion, expiration or termination, City shall be entitl ed to, and Design Professional shall deliver to City, all original maps, models, desi gns, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigati ons, appraisals, inventories, analyses, estimates, and other documents prepared, developed or discovered by Design Professional in the cour se 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 Design Pr ofessional in performing this Agreement which is not Design Professiona l’s privileged information, as defined by law, or Design Professional’s personnel information, along with all other property belonging exclusively to City which is in Design Professional’s possession. Publication of the information derived from work performed or data obtai ned in connection with services rendered under this Agreement must be approved in writing by City. (b) Additionally, it is agreed that the Part ies intend this to be an Agreement for services and each considers the products and re sults of the services to be rendered by - 12 -
Design Professional hereunder to be work made for hire. Design Professional 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 limitat ion upon its use or disseminati on by City, and may be used, reused or otherwise disposed of by City without the pe rmission of the Design Professional.
(c) Nothing herein shall constitute or be construed to be any representation by Design Professional 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 th at City utilizes for any purpose not related to this Agreement any maps, m odels, designs, drawings, photographs, studies, surveys, re ports, data, notes, computer f iles, files, investigations, appraisals, inventories, anal yses, estimates, or other documents prepared, developed or discovered by Design Professional in the course of providing the Services pursuant to this Agreement, Design Professional’s guarantees and warrantie s 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, investigati ons, appraisals, inventories, 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 s hall 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 15. DESIGN PROFESSION AL'S BOOKS AND RECORDS.
(a) For the purpose of determining co mpliance with Gov. Code § 8546.7, Design Professional shall maintain any and all documents and records demonstrating or relating to Design Professional’s perfo rmance of the Services. The Design Professional, SubDesign Pr ofessionals, and City shall ma intain any and all books, documents, papers, accounting records, Independent CPA Audi ted Indirect Cost Rate workpapers, ledgers, books of account, invoic es, vouchers, canceled checks, or other documents or records evidencing or rela ting 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 accounting principles and shall be sufficiently complete and detailed so as to pe rmit an accurate evaluation of the services provided by Design Professional pursuant to th is Agreement. All parties, including the Design Professional’s Independent CPA, shall make such workpapers and materials available at their respective offices at a ll reasonable times during the Agreement period - 13 -
and for three (3) years from the date of fi nal 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 r equired 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 provi ded directly to the City for inspection, audit and copying when it is practical to do so; ot herwise, unless an alternative is mutually agreed upon, such document s and records shall be m ade available at Design Professional’s address indicated for receipt of notices in this Ag reement. The State, State Auditor, or City, shall have access to any books, records, and documents of the Design Professional, SubDesign Profe ssionals, and the Design Professional’s Independent CPA, that are per tinent to the Agreement 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 Design Profe ssional’s business, Cit y may, by written request, require that custody of such docum ents 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 16. STANDARD OF PERFORM ANCE; FAMILIARITY WITH WORK. (a) Design Professional represents and wa rrants that it has the qualifications, experience and facilities necessary to properl y perform the Services required under this Agreement in a thorough, co mpetent and professional m anner. Design Professional shall at all times faithfully, competently an d to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Design Professional shall employ, at a minimum, generally accepted stand ards and practices utilized by persons engaged in providing servic es similar to the Services required of Design Professional under this Agreemen t, and shall use such skill, prudence, and diligence as other members of Design Professional’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 cr iteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Design Professionals work under this Agreement. Where there is a conflict between a general and a specific standard of performance or perfo rmance criteria, the specific standard or criteria shall prevail over the general.
(b) Design Professional warrants that (1) it has thoroughly investigated and considered the work to be per formed, (2) it has investi gated 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.
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SECTION 17. COMPLIANCE WITH A PPLICABLE LAWS; PERMITS AND LICENSES.
Design Professional 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. De sign Professional sha ll 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 Design Professional to comply with this section.
SECTION 18. STATE PREVAILING WAGE RATES.
(a) No Design Professional or SubD esign Professional may be awarded an Agreement containing public work elements unless register ed 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 Design Professional shall comply with all of the ap plicable provisions of the California Labor Code requiring the payment of prevailing wages. These wage rates are made a specific part of this Agreement by refer ence pursuant to Labor Code §1773.2 and will be applicable to work per formed 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 locati ons that are set up by the construction Design Professional or one of its s ubcontractors solely and specific ally 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 Dete rminations 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 Design Professional and S ubDesign Professional shall keep accurate certified payroll records and sup porting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, strai ght time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the Design Pr ofessional or SubDesign Professional 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.
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(2) The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work perfo rmed by his or her employees on the public works project.
(ii) The payroll records enumer ated under paragraph (1) above shall be certified as correct by t he Design Professional under penalty of perjury. The payroll records and all supporting documents sha ll be made available for inspection and copying by City representative’ s at all reasonable hours at t he principal office of the Design Professional. The Design Professional shall provide copies of certified payrolls or permit inspection of its records as follows:
(1) A certified copy of an empl oyee'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 payro ll 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 t he Department of Industrial Rela tions. Certified payrolls submitted to City, the Div ision of Labor Standards Enfo rcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the Design Professional. (3) The public shall not be given access to certified payroll records by the Design Professional. The Design Professional is required to forward any requests for certified payrolls to the City Contract Administrator by both email and regular mail on the business day following receipt of the request. (iii) Each Design Professional 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 avai lable 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 Design Professional or SubDesign Professional performing the work shall not be marked or obliterated. (v) The Design Professional 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 da ys, provide a notice of a change of location and address.
(vi) The Design Professional or SubDesign Professional 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 Design Professional or SubDesign Professional fails to comply within the ten (10) day period, he or she shall, as a penalty to City, forfei t one hundred dollars ($100) for eac h calendar day, or portion - 16 -
thereof, for each worker, until strict complianc e is effectuated. Such penalties shall be withheld by City from payment s then due. Design Professional is not subject to a penalty assessment pursuant to this sect ion due to the failure of a SubDesign Professional to comply with this section.
(e) When prevailing wage rates apply, t he Design Professional is responsible for verifying compliance with certified payro ll requirements. Invoice payment will not be made until the invoice is approved by the City.
(f) Penalty
(i) The Design Professional and any of its SubDesign Professionals shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the Design Professional and any SubDesign Professional 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 ra tes 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 Design Profe ssional or by its SubDesign Professional in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
(ii) The amount of this forfeitu re shall be determined by the Labor Commissioner and shall be based on considerati on of mistake, inadvertence, or neglect of the Design Professional or SubDesign Professional in failing to pay the correct rate of prevailing wages, or the previous record of the Design Professional or SubDesign Professional in meeting their respective prev ailing wage obligations, or the willful failure by the Design Professional or SubDesign Professional to pay the correct rates of prevailing wages. A mistake, i nadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the Design Professi onal or SubDesign Professional had knowledge of the obligations under t he Labor Code. The Design Professional is responsible for paying th e 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 thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Design Professional or SubDesign Professional.
(iv) If a worker employed by a SubDesign Professional on a public works project is not paid the general prev ailing per diem wages by the SubDesign Professional, the prime Design Professional of the project is not liable for the penalties described above unless the prime Design Profe ssional had knowledge of that failure of the SubDesign Professional to pay the specified prevaili ng rate of wages to those workers or unless the prime Desi gn Professional fails to comply with all of the following requirements:
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(1) The Agreement executed betwe en the Design Professional and the SubDesign Professional for the performance of work on public works projects shall include a copy of the r equirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
(2) The Design Professional shal l monitor the payment of the specified general prevailing ra te of per diem wages by t he SubDesign Professional to the employees by periodic review of the certified payroll records of the SubDesign Professional.
(3) Upon becoming aware of the S ubDesign Professional’s failure to pay the specified prevailing rate of wages to the SubDesign Pr ofessional’s workers, the Design Professional shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the SubDesign Professional for work performed on the public works project.
(4) Prior to making final payment to the SubDesign Professional for work performed on the public works project, the Design Professional shall obtain an affidavit signed under penalty of perjury fr om the SubDesign Pr ofessional that the SubDesign Professional had paid the specifi ed general prevailing rate of per diem wages to the SubDesign Professional’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 Design Professional on a public wor ks project within fifteen (15) ca lendar days of receipt of a complaint that a SubDesign Professional has failed to pay workers the general prevailing rate of per diem wages.
(vi) If City determines that employ ees of a SubDesign Professional were not paid the general prevailing rate of per diem wages and if City did not retain sufficient money under the Agr eement to pay those employ ees the balance of wages owed under the general prevailing rate of per diem wages, the Design Professional shall withhold an amount of moneys due the SubDesign Professional sufficient to pay those employees the general prevailing rate of per diem wages if requested by City. (g) Hours of Labor
Eight (8) hours labor constitutes a legal day 's work. The Design Professional shall forfeit, as a penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of the Agreement by the Design Professional or any of its SubDesign Professionals 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 prov isions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in 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 exce ss of eight (8) hours per day and forty - 18 -
(40) hours in any week, at not less than on e and one half (1.5) times the basic rate of pay, as provided in §1815.
(h) Employment of Apprentices
(i) Where either the prime Agreem ent or the sub-agreement exceeds thirty thousand dollars ( $30,000), the Design Professi onal and any subDesign Professionals under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices. (ii) Design Professionals and subDesi gn Professionals are required to comply with all Labor Code requirements r egarding the employment of apprentices, including mandatory ratios of journey le vel to apprentice workers. Prior to commencement of work, Design Professional and subDesign Professionals are advised to contact the DIR Division of A pprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information r egarding the employment of apprentices and for the specific journey-to- apprentice ratios for the Agreement work.
The Design Professional is responsible for all subDesign Professionals’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.
SECTION 19. NONDISCRIMINATION A ND STATEMENT OF COMPLIANCE. (a) The Design Professional’s sig nature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the Design Professi onal has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103. (b) During the performance of this Agreement, Design Professional and its subDesign Professionals shall not deny t he Agreement’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic informa tion, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or milit ary 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 disab ility, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, se xual orientation, or military and veteran status . Design Professional and subDesign Professionals shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. (c) Design Professional and subDesign Professionals shall comply with the provisions of the Fair Em ployment 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 regulat ions or standards ad opted 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 - 19 -
incorporated into this Agreement by referenc e and made a part hereof as if set forth in full.
(d) Design Professional shall permit access by representatives of the Department of Fair Empl oyment and Housing and the City upon reasonable notice at any time during the normal business hours, but in no case less t han twenty-four (24) hours’ notice, to such of its books, re cords, accounts, and a ll other sources of information and its facilities as said Depar tment or City shall require to ascertain compliance with this clause.
(e) Design Professional and its subDes ign Professionals shall give written notice of their obligations under this clause to labor organiza tions with which they have a collective bargaining or other Agreement.
(f) Design Professional shall inclu de the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. (g) The Design Professional, with regar d to the work performed under this Agreement, shall act in accordance with Ti tle VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipient s of federal assistance will implement and maintain a poli cy of nondiscrimination in whic h no person in the United States shall, on the basis of race, color, nati onal origin, religion, se x, age, disability, be excluded from participation in, denied the benefits of or subj ect to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
(h) The Design Professional shall comp ly with regulations relative to non- discrimination in federally-assi sted programs of the U.S. D epartment of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the Design Professional 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 SubDesign Professionals.
SECTION 20. UNAUTHORIZED ALIENS
Design Professional hereby promises and agrees to comply with all of the provisions of the Federal I mmigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, s hall not employ unauthorized aliens as defined therein. Should Design Professional so employ such unauthorized aliens for the performance of the Services, and should any liability or sanctions be imposed against City for such use of unauthorized a liens, Design Professional hereby agrees to and shall reimburse City for the cost of all su ch liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
SECTION 21. CONFLI CTS OF INTEREST.
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(a) Design Professional covenants that neit her it, nor any officer or principal of its firm, has or shall acquire any interest, di rectly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Design Professional’s performance of the Services. Design Professional further covenants that in the performance of this Agreement, no per son having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City M anager. Design Professional 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 Design Prof essional 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, Design Professional 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 acknow ledges that Design Professional is, as of the date of execution of this Agreement, indepen dently involved in the performance of non- related services for other government al agencies and private parties. Design Professional is unawar e of any stated position of City relative to such projects. Any future position of City on such projects sha ll not be considered a conflict of interest for purposes of this section.
(d) City understands and acknowledges that Design Professional will, perform non-related services for other governmental agencies and private parties following the completion of the Services under this Agreem ent. 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 Design Professional shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement or any ensui ng City construction project. The Design Professional 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) Design Professional 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. Design Professional agrees to advise City of any actual, apparent or potential co nflicts of interest that may develop subsequent to the date of execution of this Ag reement. Design Prof essional further agrees to complete any statements of economic interest if required by either City ordinance or State law. (g) The Design Professional hereby cert ifies that it doe s 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 Design Professional hereby cert ifies that the Desi gn Professional or subDesign Professional and any firm aff iliated with the Design Professional or - 21 -
subDesign Professional that bids on any construction contra ct or on any Agreement to provide construction inspection for any c onstruction 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 s ubject to the control of the same persons, through joint ownership or otherwise.
SECTION 22. REBATES, KICKBACKS, OR OTHER UNLAWFUL
CONSIDERATION.
The Design Professional warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unl awful consideration either promised or paid to any City employee. For breach or violat ion of this warranty, City shall have the right, in its discretion, to terminate this Ag reement 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 23. CONFIDENTIAL INFORM ATION; RELEASE OF INFORMATION. (a) All financial, statistical, personal, technical, or other data and information gained or work product produced by Design Professional in performance of this Agreement shall be considered c onfidential, unless such info rmation is in the public domain or already known to Design Professional. Design Professional shall not release or disclose any such information or work pr oduct to persons or entities other than City without prior written authorization from the City Manager, exc ept as may be required by law.
(b) Design Professional, its officers , employees, agents or subcontractors, shall not, without prior writte n 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" provi ded Design Professional gives City notice of such court order or subpoena.
(c) If Design Professional, or any officer, employee, agent or subcontractor of Design Professional, provides any informati on or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Design Professional for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Design Professional’s conduct.
(d) Design Professional shall promptly notify City should Design Professional, its officers, employees, agents or subcon tractors be served with any summons, complaint, subpoena, notice of deposition, r equest for documents, interrogatories, 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 Design Professi onal or be present at any - 22 -
deposition, hearing or similar proceeding. Design Professional agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Design Professional. Ho wever, 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 Agr eement, shall not authorize Desi gn Professional to further disclose such information, or disseminate the same on any other occasion. (f) Design Professional 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, Design Professional’s own personnel involved in the performance of this Agreement, at public hearings or in response to questions from a Legislative committee. (g) Design Professional 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 cont ents thereof by City, and receipt of City’s written permission.
(h) Any subcontract entered into as a resu lt of this Agreement shall contain all of the provisions of this Section.
(i) All information related to the constr uction estimate is confidential, and shall not be disclosed by Design Professional to any entity, other than City, Caltrans, and/or FHWA. All of the materials prepar ed or assembled by Design Professional pursuant to performance of this Agreement are confidential and Design Professional agrees that they shall not be made available to any individ ual or organization without the prior written approval of Cit y or except by court order. If Design Professional or any of its officers, employees, or subcontract ors does voluntarily provide information in violation of this Agreement, City has the right to reimbur sement and indemnity from Design Professional for any damages caus ed by Design Professional releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
SECTION 24. INDEMNIFICATION.
(a) Indemnification by De sign Professional. As provided under Civil Code Section 2782.8, Design Professional shall indemnify, protect, defend and hold harmless City and any and all of its officials, employ ees and agents (“Indemnified Parties”) from and against any and all claims. actions and proceedings (whether at law or equity, administrative or judicial), demands, order s, judgments, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") to the extent same arise out of, perta in to, or relate to the neg ligence, recklessness, or willful misconduct of the Design Professional, its o fficers, agents, employ ees or sub-Design Professionals (or any entity or individual that Design Prof essional shall bear the legal liability thereof) in the performance of professional services under this Agreement. In the - 23 -
event Claims are found by the trier of fact to have been caused by the joint or concurrent negligence of t he City, its contractors and ot her design professionals, and Design Professional, damages and expenses fr om both indemnity and duty to defend obligations shall be borne by each party in proportion to its negligence. Notwithstanding the foregoing, in the event one or more defendants are unabl e to pay its share of defense costs due to bankruptcy or dissoluti on of the business, Design Professional shall meet and confer with other parties regarding u npaid defense costs. The provisions of this section pertaining to Design Professiona l’s duty to defend shall not apply if there is a project-spec ific general liability policy of insurance that insures all project participants for general liability expos ure on a primary basis and also covers all design professionals involved with the project fo r their legal liability arising out of their professional services on a primary basis.
(b) Indemnification from Subcontractors. Design Professional agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub-Design Pr ofessional, subcontractor or any other person or entity involved by, for, with or on behalf of Design Pr ofessional in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Design Professional fails to obtain such indemnity obligations from others as required here, Design Pr ofessional agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligat ions 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 Design Professional 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 aris ing from gross negligence or willf ul acts or omissions of City or any and all of its officials, employees and agents.
SECTION 25. INSURANCE.
Design Professional agrees to obtain and ma intain 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 insurance policies shall be subject to approval by City as to form and content. These requirement s are subject to amendment or waiver if so approved in writing by the City Manager. De sign Professional agrees to provide City with copies of required policies upon request.
SECTION 26. ASSIGNMENT.
The expertise and experience of Design Pr ofessional 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 obli gations imposed upon Design Professional under this Agreement. In reco gnition of that interest, Design Professional shall not assign or transfer this Agreement or any portion of this Agreement or the - 24 -
performance of any of Design Professional’s duties or obligations under this Agreement without the prior written cons ent of the City. Any atte mpted assignment shall be ineffective, null and void, and shall constitu te a material breach of this Agreement entitling City to any and all rem edies at law or in equity, including termination of this Agreement pursuant to Section 28 “Terminat ion of Agreement.” City acknowledges, however, that Design Professional, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 27. CONTINUITY OF PERSONNEL.
Design Professional shall make every reas onable effort to main tain the stability and continuity of Design Prof essional’s staff and subcontract ors, if any, assigned to perform the Services. Design Professional shall notify City of any changes in Design Professional’s staff and subcontractors, if any, assigned to perform the Services prior to and during any such performance.
SECTION 28. TERMINAT ION OF AGREEMENT.
(a) City may terminate this Agreement, wit h or without cause, at any time by giving thirty (30) days written notice of termi nation to Design Professi onal. In the event such notice is given, Design Professional shall cease immediately all work in progress. (b) Design Professional may terminate th is Agreement for ca use at any time upon thirty (30) days written notice of termination to City. (c) If either Design Professional or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Design Professional, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Design Prof essional or City, all property belonging exclusively to City whic h is in Design Professional’s possession shall be returned to City. Design Professiona l shall furnish to City a final invoice for work performed and expenses incurred by Desi gn Professional, 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 Design Prof essional is given written notic e of temporary suspension.
If City gives such notice of temporary suspension, Design Professional shall immediately suspend its activities under th is Agreement. A temporary suspension may be issued concurrent with the noti ce of termination provided for in subsection A of this section.
(f) Notwithstanding any prov isions of this Agreement, Design Professional shall not be relieved of liability to City fo r damages sustained by City by virtue of any breach of this Agreement by Design Pr ofessional, and City may withhold any payments - 25 -
due to Design Professional until such time as the exact amount of damages, if any, due City from Design Professional is determined.
(g) In the event of termination, De sign Professional shall be compensated as provided for in this Agreement, except as provided in Section 12 Equipment Purchase and Other Capital Expenditures Part C.
SECTION 29. DEFAULT.
In the event that Design Professional is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Design Professional for any work performed a fter the date of default. Instead, the City may give notice to Design Professional of t he default and the reasons for the default.
The notice shall include the timeframe in wh ich Design Professi onal may cure the default. This timeframe is presumptively th irty (30) days, but may be extended, though not reduced, if circumstances warrant. During the perio d of time that Design Professional is in default, the City shall hol d 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 Design Professional does not cure the default, the City may take necessary steps to terminate this Agreement under Sect ion 28 “Termination of Agreement.” Any failure on the part of the City to give notice of the Design Professional’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.
SECTION 30. EXCUSABLE DELAYS.
Design Professional shall not be lia ble for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Design Professional. Su ch causes include, but are not limited to, acts of God, acts of the pub lic enemy, acts of federal, st ate or local governments, acts of City, court orders, fires, floods, epidem ics, 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 31. CLAIMS FILED BY CITY’S CONSTRUCTION CONTRACTOR. (a) If claims are filed by City’s cons truction contractor relating to work performed by Design Professional’s personnel, and additional information or assistance from Design Professional’s personnel is required in order to evaluate or defend against such claims; Design Design Professional agrees to make its personnel available for consultation with City’s construction contra ct administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. (b) Design Professional’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consulta tion or testimony will be reim bursed at the same rates, - 26 -
including travel costs that are being paid for Design Professional’s personnel services under this Agreement.
(c) Services of Design Professional’s personnel in connection with City’s construction contractor claims will be per formed pursuant to a written contract amendment, if necessary, extending the terminati on date of this Agreement in order to resolve the construction claims.
SECTION 32. 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 Design Professional in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 33. NOTICES.
All notices required or permitted to be gi ven under this Agreement shall be in writing and shall be personally delivered, or s ent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: Engineering Department
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Design Professional: BCR Consulting LLC_____
Attn: David Brunzell
505 West 8th Street __ ____
Claremont, California 91711
Notice shall be deemed effective on the dat e personally delivered or transmitted by facsimile or, if mailed, th ree (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 34. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Design Professional represents and wa rrants that he/she/they has/ have the authority to so execute this Agreement and to bind Design Professional to the performance of its obligations hereunder.
SECTION 35. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representativ e. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that - 27 -
commit additional funds, consistent wit h Section 37 “Amendm ent” and the City Manager’s contracting authority under the Cathedral City Municipal Code.
SECTION 36. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 37. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Design Professional and by t he City. The City Manager shall have the authority to approve any am endment 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 M unicipal Code. All other amendments shall be approved by the City Council. T he Parties agree that the requirement for written modifications canno t be waived and that any attempted waiver shall be void. Design Professional s hall only commence work covered by an amendment after the amendment is executed and notificat ion to proceed has been issued. There shall be no change in Desi gn Professional’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 38. 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 provisi on nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Design Professional shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 39. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of Californi a. In the event of litigatio n between the Parties, venue in state trial courts shall lie excl usively in the County of Riversi de, California. In the event of litigation in a U.S. District Court, venue sha ll lie exclusively in the Central District of California, in Riverside.
SECTION 40. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or ot her 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. - 28 -
SECTION 41. CONTINGENT FEE.
Design Professional warrants, by executi on of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or under standing, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Design Pr ofessional for the purpose of securing business. For breach or viol ation of this warranty, City has the right to annul this Agreement without liabilit y; pay only for the value of the wo rk actually performed, or in its discretion to deduct from the Agreement pr ice or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
SECTION 42. DEBARMENT AND SUSPENSION.
(a) The Design Professional’s signatur e affixed herein shall constitute a certification under penalty of per jury under the laws of the St ate of California, that the Design Professional or any person associat ed therewith in the capacity of owner, partner, director, officer or manager:
(i) Is not currently under suspensio n, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; (ii) Has not been suspended, debarr ed, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; (iii) Does not have a proposed debarment pending; and
(iv) Has not been indicted, convict ed, or had a civil judgment rendered against it by a court of competent jurisdicti on in any matter involving fraud or official misconduct within the past three (3) years.
(b) Any exceptions to this certificati on 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 exceptions 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. G eneral Services Administration are to be determined by FHWA.
SECTION 43. NATIONAL LABOR RE LATIONS BOARD CERTIFICATION.
In accordance with Public Contract C ode Section 10296, De sign Professional hereby states under penalty of per jury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Design Professional within the immediately precedi ng two-year period, because of Design Professional’s - 29 -
failure to comply with an order of a federal court that orders De sign Professional to comply with an order of the National Labor Relations Board.
SECTION 44. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with resp ect to the matters addressed therein and supersedes all other agreements or underst andings, whether oral or written, or enter ed into between Design Professi onal and City prior to the execution of this Agreement. No statements, r epresentations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 45. PROMPT PAYMENT FROM CITY TO DESIGN PROFESSIONAL The City shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from Design Professional on a professional service agreement. If the City fails to pay promptly , the City shall pay interest to the Design Professional, which a ccrues at the rate of 10 percent per annum on the principal amount of a money judgment remaini ng unsatisfied and pro-rated as necessary. Upon receipt of the payment r equest, 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 Design Professional as s oon 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.
SECTION 46. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be in valid, void or unenforceable, the remaining provisions of this Agreem ent shall not be affected ther eby, and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 47. ELECTR ONIC SIGNATURE
The Parties agree that, in accordance wit h the City’s Electronic Signature Use Policy, adopted on August 10, 2023, and as amended thereafter, the Parties may use electronic signatures to execut e this Agreement. Any use of electronic signatures to execute this Agreement shall comply with the City’s Electronic Signature Use Policy, and such signatures shall have the same forc e and effect as if this Agreement were executed by hand. Design Professional acknow ledges that it has had an opportunity to request and review the City’s Electronic Signature Use Policy, and Design Professional - 30 -
agrees to comply with the Elec tronic Signature Use Policy. Design Professional agrees to indemnify, defend, and hold the City harmle ss from any claim, damage, or liability associated with transmitting an electronic signature or an electronically signed record by electronic transmission.
SECTION 48. CON FLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with t he terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF , the Parties hereto have ex ecuted this Agreement on the date and year first-above written.
CITY OF CATHEDRAL CITY CONSULTANT COMPANY NAME
__________________________ _______________ ____________ Charles P. McClendon By: David Brunzell____________
City Manager Its: Principa l Investor/Archaeologist
ATTEST: ___________________________
By:____________ ____________
Its:________________________
___________________________
Tracey R. Hermosillo, CMC
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: DESIGN PROFESSIONAL’S SIGNATURES SHALL BE DULY
NOTARIZED, AND APPROPRIAT E ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF
INCORPORATION, OR OTHER RULES OR REGULATIONS
APPLICABLE TO DESIGN PROFESSIONAL’S BUSINESS ENTITY.
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 ____________________, 2025 ,
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
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 ____________________, 2025 ,
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
Task 1: Research
The records search for archaeological and historical cultural resources will be performed at the South Coastal Informati on Center (SCIC) at San Diego State University. The objective of this research will be to establish the status and extent of previous surveys in the project area and to re veal the types of resources expected to occur within the APE.
Task 2: Field Survey
BCR Consulting field staff will perform a pedestr ian cultural resources survey of the accessible APE at 15-meter transect interv als along the proposed project alignment.
The goal of the field survey is to identif y any previously unrec orded prehistoric and historic archaeological, and/or historic architectural resources located in the APE, and to produce or update the necessary site records. Negative findings ar e anticipated. If any cultural resources are revealed during Task 2, or if any private parcels require survey, a budget and schedule adjustment may be necessary.
Task 3: Native American Consultation Assistance
BCR Consulting will assist with Native Americ an Consultation, as directed by Caltrans.
During this task, BCR Consulting will contact the Native American Heritage Commission (NAHC) to request a Sacred Lands File (SLF ) Search, and to request a list of Native American tribes to contact. Caltrans Sta ff will contact all entities listed to discern whether any tribe or individual has knowledge of cultural resources within the APE. BCR Consulting will assist Caltrans staff by reviewing all communications, and will be available to discuss any issues during a maximum of two virtual conferences. The results of these communications, and the resu lts of the SLF Search will be appended to the report.
Task 4: Documents
The following documents will cont ain the results of Tasks 1- 3. They will be prepared according to Caltrans requirements. The cu rrent scope of work includes the following stipulations for the required documentation:
• The draft APE map will be prepared by City staff or contractors, based on construction plans provided by City staff and with guidance from BCR Consulting; • A maximum of one round of Caltr ans comments will be received for each document;
• Negative cultural resource findings (meaning no Historic Resources Evaluation Report [HRER] will be necessary);
• No public/community consultation outsi de of Native American Consultation; • No public meetings.
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APE Map Consultation. BCR Consulting will use the construction plans provided by City staff to help the City create the APE map to Caltr ans standards. BCR Consulting staff will review a maximum of one round of Caltrans comments to the APE in order to assist City staff wit h preparation of the final APE. City staff will make changes and produce the final APE in consultation with B CR Consulting, and according to Caltrans requirements.
Historic Property Survey Report. BCR Consulting will prepare the HPSR or summary report, to which the ASR is attached. The HPSR will also document consultation with interested parties, and will present the project description and mapping.
Archaeological Survey Report. BCR Consulting will provide a professionally-qualified archaeologist to prepare the ASR. The ASR will document studies undertaken to demonstrate the presence or absence of ar chaeological resources within the APE. If resources are identified, they will require evaluation for Na tional Register of Historic Places (NRHP) eligibility listing. If NRHP evaluation is nece ssary for the current project, a budget and schedule adjustment may be necessary.
Schedule
Upon receipt of the signed proposal, the above tasks will be scheduled. BCR Consulting anticipates completing the initial tasks withi n 60 days of receipt of authorization to proceed. Fifteen days Caltrans document revi ew time is anticipated, and another 15 days will be necessary to incorporate any co mments. Completion of the scope of work is estimated to require a total of 90 days.
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EXHIBIT "B"
COMPENSATION
The following table represents a cumulative cost estimate of the tasks to be completed, itemized by task and based on negat ive findings. Additional costs incorporated in the below estimate include photography, graphics, deliveries, word processing, mileage, photocopies, etc. Costs may vary between tasks but the total estimated cost will not be exceeded without prior authorization.
C-1
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Pr ovider 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. Servic e 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 am ount of one million dolla rs ($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 In surance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). There shall be no endorsement or modification of the CGL limiting the sc ope of coverage for either insured vs. additional insured claims or contra ctual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insuranc e in an amount not less than $1,000,000 for injuries, including acciden tal 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 dam age 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 c onsidered 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 prov ide an endorsement that the in surer waives the right of subrogation against the City and it s respective elected offici als, officers, employees, agents and representatives. In the event a clai m under the provisions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Service Provider participating under this Agreem ent, 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
C-2
$1,000,000 per occurrence. This coverage ma y be written on a “claims made” basis, and must include coverage for contractual liabilit y. The professional liability insurance required by this Agreement must be endors ed to be applicable to claims based upon, arising out of or related to Services per formed under this Agreement. The insurance must be maintained for at least three (3) c onsecutive years following the completion of Service Provider’s services or the termination of this Agr eement. During this additional three (3) year period, Service Provider shall annually and upo n request of the City submit written evidence of this continuous coverage.
B. Other Provisions. Insurance polic ies required by this Agreement shall contain the following provisions:
1. All Coverages.
a. Each insurance policy r equired by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to th is Agreement, reduced in cover age 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 placed 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 activiti es 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 limitat ions on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
b. Service Provider’s insu rance coverage shall be primary insurance with respect to Cit y, and its respective elect ed and appointed, its officers, officials, employees and volunteers. Any in surance or self-insurance maintained by City, and its respective elected and appoi nted officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Service Provider’s insurance.
c. Service Provider’s insur ance 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.
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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 elect ed and appointed officers, officials, employees or volunteers.
e. The insurer waives all ri ghts 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 writ ing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appoi nted 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 or iginal endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that in surer to bind coverage on its behalf. City reserves the right to inspect complete, certif ied copies of all required insurance policies, at any time.
1. Service Provider shall furnis h certificates and endorsements from each sub-contractor identical to those Service Provider provides.
2. Any deductibles or self-insur ed 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 re spects City or its respective elected or appointed officers, officials, employees and vo lunteers, or the Serv ice Provider shall procure a bond guaranteeing pay ment 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 Se rvice Provider’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
D-1
EXHIBIT "D"
FEDERAL FUNDING PROVISIONS
“As used throughout the Exhibit “D”, LOCAL AGENCY shall mean the City of Cathedral City.
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY’s Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as needed, to discuss progress on the AGREEMENT.
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on ______________, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on ________________, unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
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 described in Exhibit A Scope of Services. 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 LOCAL AGENCY. Adjustment in the total lump sum compensation will not be effective until authorized by AGREEMENT amendment and approved by LOCAL AGENCY.
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 set forth in Exhibit A Scope of Services, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT in accordance with the provisions of Article VI Termination.
D-2
C. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S 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 LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI 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 LOCAL AGENCY. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following email addresses:
[email protected]; [email protected].
E. The total amount payable by LOCAL AGENCY shall not
exceed_______________.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D-3
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR 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 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non- Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
ARTICLE IX AUDIT REVIEW PROCEDURES
D-4
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by 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 shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be
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considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1. 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, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR (e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines) is received and approved by 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.
2. 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.
3. 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.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or
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revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
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 CONSULTANT on account
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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 CONSULTANT 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.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances. The LOCAL AGENCY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant.
Method 1 : No retainage will be held by the LOCAL AGENCY 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 LOCAL AGENCY’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.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars
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($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer
(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 will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at
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LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off -site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects.
Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and
§1815 for any work performed by his or her employees on the public works project.
2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to
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LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any
requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (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 LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
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1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and
§1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the CONSULTANT of the project is not liable for the penalties described above unless the CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the CONSULTANT fails to comply with all of the following requirements:
a. 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.
b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the
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employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified 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.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty- five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) 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
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1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2. 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.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT.
CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
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ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR
FEDERAL FUNDS FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON- DISCRIMINATION CLAUSE AND STATEMENT OF
COMPLIANCE
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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 orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and 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 LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100- 8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its 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
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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 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.
I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY.
Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
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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.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE)
PARTICIPATION
A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, the LOCAL AGENCY shows a contract goal for DBEs.
CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (GFE) to meet this goal. It is CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and work code applicable to the type of work the firm will perform on the contract.
Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally -funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 20% . Participation by DBE CONSULTANT or subconsultants shall be in accordance with
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information contained in Exhibit 10- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15- H: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract.
CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY. Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-
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02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily withdraws with written notice from the Contract.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The LOCAL AGENCY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above. Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
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2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.
3. Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation.
• CONSULTANT’s written notice to the DBE regarding the
request, including proof of transmission and tracking
documentation of CONSULTANT’s written notice
• The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obtain the LOCAL AGENCY’s written agreement for DBE replacement. CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written
confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2. If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE. CONSULTANT may request the LOCAL
AGENCY's approval to extend this submittal period to a total of 14
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st
days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had
intended to self -perform, to the extent needed to meet DBE commitment
• Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have
included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached
• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non- DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1. Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1 -tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment) If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
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If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete Exhibit 17 -O:
Disadvantaged Business Enterprises (DBE) Certification Status Change and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17- F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form.
The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
CONSULTANT must perform CUF evaluation for each DBE working on a federal - aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide written notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9- J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
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CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9- J: DBE Commercially Useful Function Evaluation.
CONSULTANT must submit to the LOCAL AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9- J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation.
Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment • Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENGY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval.
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The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9- F: Disadvantaged Business Enterprise Running Tally of Payments to
[email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9- F is no longer required. Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9- P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report
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“no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.
C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by LOCAL AGENCY’s Contract Administrator.
ARTICLE XXII 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
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or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXIII 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 question 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 thirty (30) calendar days after completion of all work under the AGREEMENT, CONSULTANT may request review by LOCAL AGENCY 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 accordance with the terms of this AGREEMENT.
ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.
ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures.
CONSULTANT shall comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles
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and the protection of the traveling public from injury and damage from such vehicles.
C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
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 of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever. Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed 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 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.
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 Contract. Any reuse by City for another project or project location shall be at City’s sole risk.
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. LOCAL AGENCY may permit copyrighting reports or other agreement products.
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If copyrights are permitted; the AGREEMENT shall provide that the FHWA 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.
ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION
CONTRACTOR
A. If claims are filed by LOCAL AGENCY’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 LOCAL AGENCY’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 LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY. 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 LOCAL AGENCY’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.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
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D. 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 LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of 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.
ARTICLE XXX EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by LOCAL AGENCY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the AGREEMENT record.
ARTICLE XXXI PROMPT PAYMENT
A. PROMPT PAYMENT FROM LOCAL AGENCY TO CONSULTANT
The LOCAL AGENCY shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the LOCAL AGENCY fails to pay promptly, the LOCAL AGENCY 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 LOCAL AGENCY shall act in accordance with both of the following:
(1) The LOCAL AGENCY shall review each payment request as soon as feasible after receipt to verify it is a proper payment request. (2) The LOCAL AGENCY must return any payment request deemed improper by the LOCAL AGENCY 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.
B. PROMPT PAYMENT CERTIFICATION
For projects awarded on or after September 1, 2023: the CONSULTANT must now submit Exhibit 9 -P to the LOCAL AGENCY administering the contract by the 15th of the month following the month of any payment(s). If the CONSULTANT does not make any payments to subconsultants, supplier(s),
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and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
The LOCAL AGENCY must verify all Exhibit 9- P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project. The LOCAL AGENCY must email a copy of Exhibit 9- P to [email protected] before the end of the month after receiving the Exhibit 9-P from the CONSULTANT.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations : CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment.
CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub- agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Reports : CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA
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to be pertinent to ascertain compliance with such Regulations or directives.
Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information. e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub- agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub- agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following non- discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42
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U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100- 209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal -aid recipients, sub- recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation
regulations 49 C.F.R. parts 37 and 38;
• The Federal Aviation Administration’s Non- discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to
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ensure that LEP persons have meaningful access to your programs (70 Fed.
Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).