CITY OF CATHEDRAL CITY | ADMINISTRATIVE POLICY HR-AP -28
TOPIC ATTENDANCE POLICY FOR CITY COUNCIL APPOINTED
COMMISSIONS AND COMMITTEES
Approved by:
_________________________________
Charles McClendon, City Manager
Distributed by Original Date Revised
Human Resources July 22, 2025
Purpose:
To ensure accountability and consistent participation by appointed commission/committee members in commission/committee meetings and to provide a clear process for reporting and addressing absences.
Policy:
1. Scope of Application
This policy applies to all regularly scheduled commission/committee meetings as established in the Cathedral City Municipal Code . This policy excludes special meetings, emergency sessions, workshops, and joint commission/committee meetings unless specifically designated as mandatory by the City Manager.
2. Notice of Absence
If an appointed commissioner/committee member is unable to attend a scheduled meeting, the commissioner/committee member is required to notify the assigned commission/committee staff liaison via email at least 24 hours in advance, when possible. The email must include the reason for the anticipated absence.
3. Unplanned Absences
In the case of emergencies or unforeseen circumstances that prevent prior notice, the commissioner/committee member must notify the staff liaison via email as soon as reasonably possible following the missed meeting, providing an explanation for the absence.
4. Categories of Absences
Absences shall be classified as either excused or unexcused:
Excused Absences:
• Personal or family illness
• Work-related conflicts that cannot be rescheduled
• Family emergencies
• Pre-planned personal travel communicated in advance
• Other extraordinary circumstances approved by the City Manager Charles McClendon (Jul 22, 2025 08:19 PDT)
Unexcused Absences:
• Failure to attend without prior notification
• Absences for reasons not meeting excused criteria
• Failure to provide notification within required timeframes
5. Documentation of Absences
The staff liaison shall maintain records of all commissioner/committee member absences, including the date of the meeting, the reason provided, and the classification as excused or unexcused. These records shall be retained for a minimum of 12 months.
6. Threshold for Excessive Absences
If an appointed commissioner/committee member is absent from three (3) consecutive regular meetings or from twenty-five percent (25%) of the duly scheduled meetings within one fiscal year, the staff liaison shall report the absences to the City Manager.
7. City Manager Review and Notification
Upon receipt of a report indicating excessive absences, the City Manager shall notify the City Council member who nominated the commissioner/committee member and confer with them on what actions will be required in accordance with the city’s municipal code. For those Commissioners/Committee members appointed by the full body, the City Manager shall notify the City Council and seek direction on what actions will be required in accordance with the city’s municipal code. Actions may include outreach to the commissioner/committee member, a formal warning, or a recommendation for removal.
8. Reporting on Agendas
Each City commission/committee shall include a standing agenda item on its regular meeting agendas for reporting commissioner/committee member attendance, listed as a "receive and file" item. The attendance reports from each commission will be collected by the City Clerk and compiled into a consolidated "receive and file" document, which will be placed on the City Council’s meeting agendas on a regular basis to promote transparency and maintain accurate records.
9. Commissioner/Committee Member Acknowledgment
All newly appointed commissioners/committee members shall receive this attendance policy as part of their appointment orientation materials and must sign an acknowledgment form confirming they have received, read, and understand the policy requirements.
Effective Date: This policy shall take effect immediately upon adoption and shall be included in onboarding materials for all newly appointed commissioners.
HR-AP 28 Cathedral City - Attendance Policy
for City Council Appointed Commissions and
Committees
Final Audit Report 2025-07-22
Created: 2025-07-22
By: Eugenia Torres ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAflXmBE4Ovn3lc2POGUEgC91cs8rGqy4K "HR-AP 28 Cathedral City - Attendance Policy for City Council A ppointed Commissions and Committees" History
Document created by Eugenia Torres ([email protected]) 2025-07-22 - 3:06:39 PM GMT
Document emailed to Charles McClendon ([email protected]) for signature 2025-07-22 - 3:08:29 PM GMT
Email viewed by Charles McClendon ([email protected]) 2025-07-22 - 3:16:16 PM GMT
Document e-signed by Charles McClendon ([email protected]) Signature Date: 2025-07-22 - 3:19:07 PM GMT - Time Source: server Agreement completed.
2025-07-22 - 3:19:07 PM GMT
Staff Report
City Council
Item No. 6.C
Meeting Date: August 13, 2025
From: John A. Corella, Director of Public Works
Title: Amendment No. 1 to the Professional Services Agreement with Willdan Engineering, Inc. for the Sarah Street Area Assessment District Formation Phase 2A.
RECOMMENDATION:
To approve Amendment No. 1 to the Professional Services Agreement with Willdan Engineering, Inc. to extend the term of the agreement for the Sarah Street Assessment District Formation Project – Phase 2A; authorize a budget adjustment in the amount of $15,131.74 to continue project funding; and authorize the City Manager to execute this Amendment No. 1.
BACKGROUND:
On January 4, 2023, the City Council approved an agreement with Woodard & Curran (Consultant) to provide Phase 1 Assessment District support services. The scope of work included public outreach related to the potential formation of an assessment district in the combined Sarah Street area, which encompasses the following:
• Agua Caliente Trail Area
• Sarah Street Area
• Bochner Family Property
On November 29, 2023, the City Council awarded a professional services agreement to Willdan Engineering, Inc. (Willdan) to provide Phase 2A preliminary design services for the combined Sarah Street area.
A community update meeting was held on November 14, 2024, at City Hall to inform property owners of the progress on the assessment district effort. Attendees included two representatives from Willdan, three property owners, and City staff.
During the meeting, Willdan presented an overview of the project, which included the proposed scope of improvements, preliminary construction cost estimates, available financing mechanisms, and an explanation of the assessment district formation process. A summary of the proposed improvements and meeting outcomes by area is provided below:
Agua Caliente Trail Area:
The proposed improvements within the designated assessment district included streets, water and sewer systems, gas and electrical utilities.
Two property owners from the Agua Caliente Trail area attended the meeting and expressed concern about the high preliminary assessment estimates. Based on their input, property owners in this area indicated they did not wish to move forward with assessment district formation.
Bochner Family Property:
The proposed improvements within the assessment district for the Bochner Family Property included sewer and electrical installations. These improvements are proposed to be extended to the property line to provide for future connections upon development.
No representatives from this property attended the meeting, so staff could not gauge interest or receive feedback.
Sarah Street Area:
Improvements proposed for the Sarah Street Area were limited to sewer infrastructure, as all other utilities are already available.
One property owner attended the meeting and expressed interest in proceeding with the preliminary design for the sewer assessment district formation. Based on this limited input, staff identified the need to further assess interest among other property owners in the area before making a recommendation.
DISCUSSION:
Since the execution of the agreement, Willdan Engineering has completed several tasks, including utility coordination, preliminary exhibits, a preliminary sewer memorandum, and an engineer’s opinion of probable cost. These tasks supported the November 14, 2024, community meeting presentation.
Following the feedback from the Sarah Street property owner, Willdan refined the project scope to focus exclusively on the Sarah Street area. The engineer’s opinion of probable cost was subsequently updated to reflect this revised scope.
Due to this refined scope and the need for continued community engagement, an extension of the agreement term is necessary to complete additional tasks such as hosting another community meeting with the Sarah Street property owners, distributing a postcard survey, and analyzing the level of interest in proceeding with assessment district formation.
A follow-up community meeting is scheduled for July 30, 2025, to further assess interest from other property owners prior to proceeding with the postcard survey and making a formal recommendation on whether to proceed with the assessment district formation for the Sarah Street area. The results of this meeting with the Sarah Street property owners will be presented tonight.
The original agreement with Willdan expired on November 29, 2024. A retroactive extension is necessary to allow sufficient time to complete these additional Phase 2A tasks.
Amendment No. 1, attached to this report, proposes extending the agreement term by thirteen (13) months, through December 31, 2025, resulting in a total agreement term of twenty-five (25) months. The amendment does not modify the scope of work or compensation.
Because the project was originally anticipated to be completed within FY 2024-25, no funds were allocated for Phase 2A Preliminary Design Services in the FY 2025-26 Budget. A budget adjustment in the amount of $15,131.74 is required to complete the remaining work on this phase of the project.
City staff recommend the City Council approve Amendment No. 1 to the Professional Services Agreement with Willdan Engineering, Inc. to extend the term of the agreement for the Sarah Street Assessment District Formation Project, Phase 2A; authorize a budget adjustment in the amount of $15,131.74 to continue project funding; and authorize the City Manager to execute this Amendment No. 1.
FISCAL IMPACT:
This Amendment No. 1 to the Professional Services Agreement with Willdan Engineering, Inc., modifying Section 1 “Term of Agreement”, does not increase, modify, or affect the total compensation of the agreement.
The original agreement with Willdan was approved in the amount of $49,300.00, with a fifteen percent (15%) contingency of $7,395.00, resulting in a total approved budget of $56,695.00, as outlined below:
Willdan Engineering Cost $49,300.00
15% Contingency $ 7,395.00
Total Approved Budget $56,695.00
This approved budget was funded through the Engineering Professional and Technical Services account (100-100-150-156-8600-8601) within the FY 2023-24 and FY 2024-25.
The remaining available balance includes a contract balance of $7,736.74, and a contingency balance of $7,395.00. for a total remaining budget in the amount of $15,131.74 as shown below.
Willdan Engineering Contract Balance $ 7,736.74
Contingency Balance $ 7,395.00
Total Remaining Budget $15,131.74
A budget adjustment is required to carry over the remaining project funds and complete the remaining work under Phase 2A. Staff are requesting to roll over the total remaining budget of $15,131.74 into the FY 2025-26 Engineering Professional and Technical Services budget.
FISCAL
YEAR
DESCRIPTION GENERAL
LEDGER
ACCOUNT
CODES
PROJECT
CODE
AMOUNT ONE TIME
Or
ONGOING
2025-2026
Sarah Street
Assessment
District, Phase 2A
100-100-150-
156-8600-8601 C01020 $15,131.74 One Time
2025-2026 Total $15,131.74
FIVE-YEAR STRATEGIC PLAN:
Goal B: Community Investment
Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.
ATTACHMENTS:
Amendment No. 1
AMENDMENT NO. 1
TO THE AGREEMENT FOR
DESIGN PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
WILLDAN ENGINEERING INC.
In accordance with the "Agreement for Design Professional Services" dated November 29, 2023, (referred to as the "Agreement"), by and between the City of Cathedral City, a municipal corporation ("City") and Willdan Engineering Inc., a California corporation ("Consultant"), and in accordance with Section 2 7 of the Agreement, entitled, "Amendments", this Amendment Number One (1) to the Agreement is made and entered into this 13
th day of August 2025, ("Effective Date").
RECITALS
A. Consultant currently provides the City with professional engineering services for the Sarah Street Area Assessment District Formation Project – Phase 2A Project.
B. City desires to amend the Agreement as per Section 1, to: extend the contract term to complete the postcard survey and survey tabulations for the project.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
Section 1. The agreement termination date as set forth in the Agreement is hereby amended such that it shall expire at the end of business day on December 31, 2025.
Section 2. Except as specifically amended by this Amendment No. 1, the remaining terms of the Agreement shall remain in full force and effect. In the event of a conflict between the provisions of this Amendment No. 1 and the provisions of the Agreement, the provisions of this Amendment No. 1 shall control.
SUMMARY:
Amendment No. 1 extends the contract end date to December 31, 2025.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. 1 to be executed as of the date first written above.
By: Charles P. McClendon By:
City Manager
ATTEST:
By: Tracey R. Hermosillo, CMC By:
City Clerk
By: Eric S. Vail
City Attorney
CITY OF CATHEDRAL CI TY OF CATHEDRAL CITY WILLDAN ENGINEERING, INC.
Staff Report
City Council
Item No. 6.D
Meeting Date: August 13, 2025
From: John A. Corella, Director of Public Works
Title: Award of a Professional Services Agreement to HR Green Pacific, Inc. for the Design of the Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction Project City Project No. C08684.
RECOMMENDATION:
To approve a Professional Services Agreement with HR Green Pacific, Inc. to prepare the plans, specifications, estimate, right of way and environmental documents for the Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction project, city project No. C08684, in the not to exceed amount of $345,303.34; authorize a 10% design contingency in the amount of $34,696.66 for unforeseen design related expenses, thereby bringing the total project cost to $380,000; and authorize the City Manager to execute the agreement.
BACKGROUND:
Date Palm Drive serves as a vital economic and transportation corridor for the City of Cathedral City. Heavily used by residents, businesses, and travelers, it supports commercial activity, residential access, and regional traffic circulation. The corridor links to major arterial roads in neighboring communities and provides direct connections to both the I-10 freeway and East Palm Canyon Drive.
On August 20, 2023, Tropical Storm Hilary brought heavy rainfall that caused widespread mud and debris deposits across both public and private properties in the northeastern portion of Cathedral City's Panorama Park neighborhood.
As a result of flooding and roadway blockages, Date Palm Drive was closed from Vista Chino to 30th Avenue. The accumulation of sediment, combined with the operation of heavy equipment during cleanup efforts, led to pavement deterioration beyond what is typically expected from normal traffic or previous flood events.
In September 2023, city staff conducted a Pavement Condition Index (PCI) survey along Date Palm Drive, between Vista Chino and Los Gatos Road, to assess roadway damage resulting from the tropical storm event on August 20, 2023. The findings were compared to PCI ratings recorded prior to the storm. The comparison revealed a significant decline in pavement conditions:
Roadway Start Point End Point PCI before
8/20/2023
PCI after
8/20/2023 Difference
Vista Chino Adelina Road 46 23 -23
Date Palm Drive
Adelina Road Los Gatos Road 51 18 -33
The current PCI ratings for the affected roadway segment between Vista Chino and Los Gatos Road have declined to an average of 14, which is classified as “very poor” condition, indicating the critical condition of the roadway and requiring full roadway reconstruction.
A summary of current PCI ratings is provided below:
Roadway Start Point End Point PCI
Vista Chino Adelina Road 11
Date Palm Drive Adelina Road Los Gatos Road 17
Average 14
Date Palm Drive is designated as a federal-aid principal arterial highway by the Federal Highway Administration (FHWA).
In response to damage caused by Tropical Storm Hilary, the city prepared and submitted a damage assessment form (DAF) to the California Department of Transportation (Caltrans), which administers funding from the FHWA Emergency Relief (ER) program, to request support for roadway restoration.
On June 6, 2024, Caltrans approved the city’s request to utilize emergency repair funds for both the preliminary engineering (including design and environmental and right of way documents) and construction phases of the Date Palm Drive project. The total estimated project cost approved is in the amount of $3,016,940.00. Under the Federal Highway Administration’s ER Program, 88.53% ($2,670,896.98) of the project costs will be covered by federal funds, with the remaining 11.47% ($346,043.02) provided through a local match from the city.
The proposed scope of work for the FHWA eligible impacted road segment (the area impacted by Tropical Storm Hilary) includes the removal and replacement of the existing asphalt pavement on Date Palm Drive between Vista Chino Drive and 250 feet south of Los Gatos Road. In addition, the project will incorporate the design and construction of mitigation measures aimed at reducing and/or eliminating future storm-related roadway damage and traffic impediments at the intersection of Date Palm Drive and Los Gatos Road.
On August 9, 2024, Caltrans assigned a federal project number for the Date Palm Drive project and approved the authorization/agreement summary (E-76) funding the preliminary engineering phase of the project for a total amount of $240,000.00, allocating $212,472.00 from the ER program funds.
To maximize efficiency and cost savings, city staff elected to increase the design limits beyond the FHWA-funded segment, extending the project from 250 feet south of Los Gatos Road to 30th Avenue. This approach is further supported by the City’s Pavement Management Program, which identified the extended segment as a priority based on current pavement conditions. The PCI for the added roadway segments averages 42, which is classified as “poor” condition and indicates the need for pavement rehabilitation. The PCI ratings for the individual segments are shown below:
Roadway Start Point End Point PCI
Los Gatos Road Tachevah Drive 40
Tachevah Drive Tortuga Road 41
Tortuga Road 30th Avenue 43 Date Palm Drive
Average 42
Although this project extension is not eligible for FHWA funding, its inclusion will streamline the overall design process and eliminate the need for separate contracts for design and construction. This strategic decision aligns with the city’s commitment to improving roadway resilience and infrastructure sustainability.
DISCUSSION:
With Caltrans funding authorization, project limits defined, and the scope of work established, city staff initiated the process of selecting a qualified consultant by issuing a request for qualifications and proposals (RFQ/P).
City staff solicited RFQ/P proposals for the preparation of plans, specifications, estimates, right-of-way and environmental documents for the project.
The RFQ/P was publicly advertised in The Desert Sun on March 20 and March 27, 2025, and was posted on the city’s website from March 20 through April 17, 2025. The submission deadline for proposals was April 17, 2025.
Within the RFQ/P, engineering consultants specializing in this type of work were invited to submit statements of qualification demonstrating their expertise in similar infrastructure projects. Additionally, cost proposals were required to be submitted in a separate sealed envelope in accordance with state and federal proposal submission requirements.
By the submission deadline, the city received three (3) proposals from the following consultant companies:
HR Green Pacific, Inc. Palm Desert, CA
TKE Engineering, Inc. Palm Desert, CA
NCE Anaheim, CA
An evaluation panel, consisting of two members from the city’s Public Works division, one representative from the Building and Safety department, and one of the city’s on-call federal/state funded projects support consultants, reviewed and scored the proposals. The evaluation criteria included responsiveness, consultant qualifications, and demonstrated understanding of the project scope.
Based on the panel’s evaluations, attached to this report, HR Green Pacific, Inc. (HR Green), was identified as the most qualified consultant to perform the required services.
City staff subsequently reviewed HR Green’s proposal and requested clarification on specific scope of work items, along with a revised cost estimate. In response, HR Green submitted an updated scope and a detailed cost breakdown.
After thorough review, staff determined that the revised cost proposal is within industry standards. The FHWA-funded segment aligns with the budget allocated through the ER program and the cost for the extended segment is consistent with the project’s valuation. A summary table of the proposal evaluations and rankings is included with this report.
As with all federally or state-funded projects, Caltrans requires a right of way (R/W) certification to ensure that all necessary property rights have been secured, any obstructions have been resolved, and all acquisition activities comply with state and federal laws before the project can be approved for construction.
As part of their contracted scope of work, HR Green will prepare construction plans and determine the precise R/W needs for the project. Once this information is finalized, staff will return to the City Council to present a detailed estimate and seek formal approval for the necessary R/W acquisitions.
City staff recommend that the City Council approve a professional services agreement with HR Green Pacific, Inc. to prepare the plans, specifications, estimate, right of way and environmental documents for the Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction project, city project No. C08684, in the not to exceed amount of $345,303.34; authorize a 10% design contingency in the amount of $34,696.66 for unforeseen design related expenses, thereby bringing the total project cost to $380,000; and authorize the City Manager to execute the agreement.
FISCAL IMPACT:
ORIGINAL BUDGET:
The project is listed in the FY 2025-26 and FY 2026-27 Capital Improvement Program with an estimated total programmed budget amount of $283,500.00 as shown below:
Emergency Relief Fund (FHWA) $212,472.00
General Fund (MOE) $71,028.00
Estimated Total Programmed Budget $283,500.00
RFQ/P PROPOSED COST:
HR Green’s cost proposal for the preliminary engineering of the Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction project (CIP C08684) is in the amount of $345,303.34.
Additionally, city staff propose to include a 10% contingency in the amount of $34,696.66 for unforeseen design-related expenses, thereby bringing the total design cost to $380,000.00.
HR Green Cost Proposal $345,303.34
Contingency (10%) $ 34,696.66
Total Design Cost $380,000.00
REQUEST FOR ADDITIONAL BUDGET FUNDING:
Available MOE monies in the amount of $96,500.00 from the General Fund will be allocated to make up the difference between the total design cost and the estimated total programmed budget as outlined below.
Total Design Cost $380,000.00
Estimated Total Programmed Budget $283,500.00
Additional MOE Required $ 96,500.00
The Preliminary Engineering (PE) for the Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction project (CIP C08684) is proposed be funded with Capital Improvement Program funds (Fund 331) in the amount of $212,472.00 (FHWA-ER Program funds), and General Fund MOE (Fund 100) in the amount of $167,528.00, as shown below.
FISCAL
YEAR DESCRIPTION
GENERAL
LEDGER
ACCOUNT
CODES
PROJECT CODE AMOUNT
ONE TIME
or
ONGOING
2025-26 ER Program
Funds (FHWA)
331-100-150-
156-8600-8601 C08684 $212,472.00 One Time
2025-26 General Fund
(MOE)
100-100-150-
156-8600-8601 C08684 $167,528.00 One Time
2025-26 Total $380,000.00
FIVE-YEAR STRATEGIC PLAN:
Goal B: COMMUNITY INVESTMENT
Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.
ATTACHMENTS:
1. Project Vicinity Map
2. Proposal Evaluation and Ranking
3. HR Green Pacific, Inc. Professional Services Agreement Project Limits
Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction Project Legend
Project Limits
3000 ft
N
➤
REFERENCE:
FHWA Emergency Relief Program Funded
Local Funds
VISTA CHINO
LOS GATOS ROAD
30TH AVENUE
DATE PALM DRIVE
Project: Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction Project, City Project No. C08684
SCORES HR GREEN NCE TKE
Rater 1 275 292.5 305
Rater 2 255 205 250
Rater 3 290 245 210
Rater 4 285 220 205
AVERAGE 276.25 240.625 242.5
RANKINGS HR GREEN NCE TKE
Rater 1 3 2 1
Rater 2 1 3 2
Rater 3 1 2 3
Rater 4 1 2 3
AVERAGE 1.5 2.25 2.25
Professional Engineering Design Services Services: Scores Professional Engineering Design Servicest Services: Rankings Results: HR Green Highest Ranked Proposal
- 1 -
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
HR GREEN PACFIC, INC.
FOR
TROPICAL STORM HILARY DATE PALM PAVEMENT RECONSTRUCTION
PROJECT,
CITY PROJECT NUMBER C08684
FEDERAL PROJECT NUMBER ER-15Y0(014)
This Agreement for Professional Services (“Agreement”) is entered into as of August 13, 2025 (“Effective Date”) by and between the City of Cathedral City, a municipal corporation (“City”) and HR Green Pacific, Inc. a California Corporation (“Professional”). City and Professional are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by Request for Proposals, the performance of the professional design engineering support services for various state and federally funded projects, defined and described particularly in Section 2 of this Agreement.
B. Professional, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Professional was selected by the City on the basis of Professional’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required.
D. Pursuant to the City of Cathedral City’s Municipal Code, City has authority to enter into this Professional Services Agreement and the City Manager has authority to execute this Agreement.
E. The Parties desire to formalize the selection of Professional for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
- 2 -
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 27 "Termination of Agreement" of this Agreement, the Term of this Agreement is for two (2) years commencing on the Effective Date.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services. Professional agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
(b) Schedule of Performance. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Professional shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Professional to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Professional shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 34 “Administration and Implementation” or Section 36 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. SAFETY
(a) Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by City Safety Officer and other City representatives.
Consultant personnel shall wear hard hats and safety vests at all times while working on the construction project site.
(b) Pursuant to the authority contained in Vehicle Code §591, City has determined that such areas are within the limits of the project and are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
(c) Any subcontract entered into as a result of this agreement, shall contain all of the provisions of this Section.
(d) CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the - 3 -
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 Agreement will be based on lump sum.
The total lump sum price paid to Consultant will include compensation for all work and deliverables, including travel and equipment. No additional compensation will be paid to Consultant, unless there is a change in the scope of the work or the scope of the project. In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between Consultant and City. Adjustment in the total lump sum compensation will not be effective until authorized by Agreement amendment and approved by the City. (b) Progress payments may be made monthly in arrears based on the percentage of work completed by Consultant. If Consultant fails to submit the required deliverable items according to the schedule, City shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 27 "Termination of Agreement".
(c) Consultant shall not commence performance of work or services until this Agreement has been approved by City and notification to proceed has been issued by City Contract Administrator. No payment will be made prior to approval of any work, or for any work performed prior to approval of this Agreement. (d) Consultant will be reimbursed within thirty (30) days upon receipt by City Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this project number and project title. Final invoice must contain the final cost and all credits due City that include any equipment purchased under the provisions of Section 11 “Equipment Purchase”. The final invoice must be submitted within sixty (60) calendar days after completion of Consultant’s work unless a later date is approved by the City. Invoices shall be mailed to the City in accordance with Section 32 “Notices”.
(e) The total amount payable by City shall not exceed Three Hundred FortyFive Thousand Three Hundred Three Dollars and Thirty-Four Cents ($345,303.34).
SECTION 6. COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS. (a) The Consultant agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost. - 4 -
(b) The Consultant also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
(c) Any costs for which payment has been made to the Consultant that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the Consultant to City. (d) When a Consultant or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
SECTION 7. AUDIT REVIEW PROCEDURES.
(a) Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by Agreement, shall be reviewed by City’s Chief Financial Officer.
(b) Not later than thirty (30) days after issuance of the final audit report, Consultant, may request a review by City’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. (c) Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.
(d) Consultant and subconsultant Agreements, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an Agreement audit, and incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, Cost Proposal and ICR, and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review, it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed fully 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 City 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 City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state, or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement pursuant to Section 27 “Termination of Agreement” and disallowance of prior reimbursed costs.
(e) Consultant’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations - 5 -
(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 City to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement pursuant to Section 27 “Termination of Agreement” and disallowance of prior reimbursed costs.
(i) During IOAI’s review of the ICR audit work papers created by the Consultant’s independent CPA, IOAI will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
Accepted rates will be as follows:
a) If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b) If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c) If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. (ii) If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter.
IOAI will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
(iii) If the Consultant fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement.
- 6 -
(iv) Consultant may submit to City final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) IOAI has issued its final ICR review letter. The Consultant must submit its final invoice to City no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all other agreements executed between City and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.
SECTION 8. DISPUTES.
Prior to either party commencing any legal action under this Agreement, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
(a) Any dispute, other than audit, concerning a 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 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, Consultant may request review by City Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
(c) Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.
SECTION 9. SUBCONTRACTING.
(a) Nothing contained in this Agreement or otherwise, shall create any contractual relation between City and any subconsultant(s), and no sub-agreement shall relieve Consultant of its responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant.
Consultant’s obligation to pay its subconsultant(s) is an independent obligation from City’s obligation to make payments to Consultant.
(b) Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization in accordance with Section 34 “Administration and Implementation” of this Agreement, except that, which is expressly identified in the approved Cost Proposal.
- 7 -
(c) Any sub-agreement entered into as a result of this Agreement, shall contain all the provisions stipulated in this entire Agreement to be applicable to Subconsultants unless otherwise noted.
(d) Consultant shall pay its subconsultants within fifteen (15) calendar days from receipt of each payment made to Consultant by City. (e) Any substitution of subconsultant(s) must be approved in writing by City in accordance with Section 34 “Administration and Implementation” of this Agreement 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 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.
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 Consultant. Consultants and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the City’s prior written approval. Any violation of these provisions shall subject the violating Consultant or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
- 8 -
SECTION 11. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES. (a) Prior authorization in writing, by City in accordance with Section 34 “Administration and Implementation” of this Agreement shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or Consultant services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. (b) For purchase of any item, service, or consulting work not covered in the Consultant’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by City in accordance with Section 34 “Administration and Implementation” of this Agreement; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified. (c) Any equipment purchased as a result of this Agreement is subject to the following:
(i) Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated pursuant to Section 27 “Termination of Agreement” of this Agreement, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City. (ii) Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
SECTION 12. INSPECTION AND FINAL ACCEPTANCE.
Consultant and any subconsultant shall permit City, the state, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the Term of Agreement including review and inspection on a daily basis. City shall reject or finally accept Consultant’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Consultant’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Consultant’s work by City shall not constitute a waiver of any of the provisions of this - 9 -
Agreement including, but not limited to, Section 23 “Indemnification” and Section 24 “Insurance.”
SECTION 13. OWNERSHIP OF DOCUMENTS.
(a) It is mutually agreed that all materials prepared by Consultant under this Agreement shall become the sole property of City, and Consultant shall have no property right therein whatsoever. Immediately upon completion, expiration or termination, City shall be entitled to, and Consultant shall deliver to City, all original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, inventories, analyses, estimates, and other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by Consultant in performing this Agreement which is not Consultant’s privileged information, as defined by law, or Consultant’s personnel information, along with all other property belonging exclusively to City which is in Consultant’s possession.
Publication of the information derived from work performed or data obtained in connection with services rendered under this Agreement must be approved in writing by City.
(b) Additionally, it is agreed that the Parties intend this to be an Agreement for services and each considers the products and results of the services to be rendered by Consultant hereunder to be work made for hire. Consultant acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City, and may be used, reused or otherwise disposed of by City without the permission of the Consultant.
(c) Nothing herein shall constitute or be construed to be any representation by Consultant that the work product is suitable in any way for any other project except the one detailed in this Agreement. Any reuse by City for another project or project location shall be at City’s sole risk. If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, inventories, analyses, estimates, or other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement, Consultant’s guarantees and warranties in Section 15 “Standard of Performance; Familiarity With Work” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, investigations, appraisals, 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).
- 10 -
(e) City may permit copyrighting reports or other agreement products. If copyrights are permitted; the Agreement shall provide that the City shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
SECTION 14. PROFESSIONAL'S BOOKS AND RECORDS.
(a) For the purpose of determining compliance with Gov. Code § 8546.7, Consultant shall maintain any and all documents and records demonstrating or relating to Consultant’s performance of the Services. The Consultant, Subconsultants, and City shall maintain any and all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement, including, but not limited to, the costs of administering the Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement. All parties, including the Consultant’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the Agreement period and for three (3) years from the date of final payment under the Agreement and to the extent required by laws relating to audits of public agencies and their expenditures.
(b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Consultant’s address indicated for receipt of notices in this Agreement. The State, State Auditor, or City, shall have access to any books, records, and documents of the Consultant, Subconsultants, and the Consultant’s Independent CPA, that are pertinent to the 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 Consultant’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors-in-interest and authorized representatives.
SECTION 15. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK. (a) Professional represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this - 11 -
Agreement in a thorough, competent and professional manner. Professional shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Professional shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Professional under this Agreement, and shall use such skill, prudence, and diligence as other members of 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 criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Professionals work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general. (b) Professional warrants that (1) it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement.
SECTION 16. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
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. Professional shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Professional to comply with this section.
SECTION 17. 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 City construction sites, at City facilities and at off-site locations that are set up by the construction - 12 -
contractor or one of its subcontractors solely and specifically to serve City projects.
Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
(c) General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov.
(d) Payroll Records
(i) Each Consultant and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by 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:
(1) The information contained in the payroll record is true and correct.
(2) The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
(ii) The payroll records enumerated under paragraph (1) above shall be certified as correct by the Consultant under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by City representative’s at all reasonable hours at the principal office of the Consultant.
The Consultant shall provide copies of certified payrolls or permit inspection of its records as follows:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
(2) A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the Consultant. (3) The public shall not be given access to certified payroll records by the Consultant. The Consultant is required to forward any requests for certified - 13 -
payrolls to the City Contract Administrator by both email and regular mail on the business day following receipt of the request.
(iii) Each Consultant shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
(iv) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by City shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the Consultant or Subconsultant performing the work shall not be marked or obliterated. (v) The Consultant shall inform City of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
(vi) The Consultant or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the Consultant or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to City, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by City from payments then due. Consultant is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section. (e) When prevailing 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 City.
(f) Penalty
(i) The Consultant and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the Consultant and any Subconsultant shall forfeit to the City a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the Agreement by the Consultant or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
(ii) The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the Consultant or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the Consultant or Subconsultant to - 14 -
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.
(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 Consultant or Subconsultant. (iv) If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime Consultant of the project is not liable for the penalties described above unless the prime Consultant had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime Consultant fails to comply with all of the following requirements:
(1) The Agreement executed between the Consultant and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. (2) The Consultant shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant. (3) Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the 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.
(4) Prior to making final payment to the Subconsultant for work performed on the public works project, the Consultant shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813. (v) Pursuant to Labor Code §1775, City shall notify the Consultant on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages. (vi) If City determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if City did not retain sufficient money under the Agreement to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the Consultant shall withhold an amount of - 15 -
moneys due the Subconsultant 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 Consultant shall forfeit, as a penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of the Agreement by the Consultant or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees 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
(i) Where either the prime Agreement or the sub-agreement exceeds thirty thousand dollars ($30,000), the Consultant and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
(ii) Consultants and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, Consultant and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-toapprentice ratios for the Agreement work. The Consultant is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.
SECTION 18. NONDISCRIMINATION AND STATEMENT OF COMPLIANCE. (a) The Consultant’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the Consultant has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
(b) During the performance of this Agreement, Consultant and its subconsultants shall not deny the Agreement’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, - 16 -
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 City to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. (d) Consultant shall permit access by representatives of the Department of Fair Employment and Housing and the City upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or City shall require to ascertain compliance with this clause.
(e) Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
(f) Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. (g) The Consultant, with regard to the work performed under this Agreement, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
(h) The Consultant shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the Consultant shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
SECTION 19. UNAUTHORIZED ALIENS
- 17 -
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein.
Should Contractor 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 aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
SECTION 20. CONFLICTS OF INTEREST.
(a) Professional covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Professional’s performance of the Services. Professional further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. 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 Professional 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, 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 acknowledges that Professional is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Professional is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (d) City understands and acknowledges that Professional will, perform nonrelated services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. (e) During the term of this Agreement, the Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement or any ensuing City construction project. The Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement or any ensuing City construction project which will follow. (f) Consultant certifies that it has disclosed to City any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this Agreement. Consultant agrees to advise City of any actual, apparent or - 18 -
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 City ordinance or State law. (g) The Consultant hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
(h) The Consultant hereby certifies that the Consultant or subconsultant and any firm affiliated with the Consultant or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this Agreement, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
SECTION 21. REBATES, KICKBACKS, OR OTHER UNLAWFUL
CONSIDERATION.
The Consultant warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right, in its discretion, to terminate this Agreement without liability, to pay only for the value of the work actually performed, or to deduct from this Agreement price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
SECTION 22. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All financial, statistical, personal, technical, or other data and information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law. (b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
- 19 -
(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, 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 Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. (e) Permission to disclose information on one occasion, or public hearing held by City relating to the Agreement, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion. (f) Consultant shall not comment publicly to the press or any other media regarding the Agreement or City’s actions on the same, except to City’s staff, Consultant’s own personnel involved in the performance of this Agreement, at public hearings or in response to questions from a Legislative committee. (g) Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by City, and receipt of City’s written permission.
(h) Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.
(i) All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity, other than City, Caltrans, and/or FHWA. All of the materials prepared or assembled by Consultant pursuant to performance of this Agreement are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If Consultant or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Agreement, City has the right to reimbursement and indemnity from Consultant for any damages caused by Consultant releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
SECTION 23. INDEMNIFICATION.
(a) Indemnification by Professional. As provided under Civil Code Section 2782.8, Professional shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all claims. actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") to the extent same arise out - 20 -
of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Professional, its officers, agents, employees or sub-consultants (or any entity or individual that Professional shall bear the legal liability thereof) in the performance of professional services under this Agreement. In the event Claims are found by the trier of fact to have been caused by the joint or concurrent negligence of the City, its contractors and other professionals, and Professional, damages and expenses from 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 unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to Professional’s duty to defend shall not apply if there is a project-specific general liability policy of insurance that insures all project participants for general liability exposure on a primary basis and also covers all professionals involved with the project for their legal liability arising out of their professional services on a primary basis.
(b) Indemnification from Subcontractors. Professional agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub-consultant, subcontractor or any other person or entity involved by, for, with or on behalf of Professional in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Professional fails to obtain such indemnity obligations from others as required here, Professional agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of 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 arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 24. INSURANCE.
Professional agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager Professional agrees to provide City with copies of required policies upon request.
SECTION 25. ASSIGNMENT.
The expertise and experience of Professional are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Professional under this - 21 -
Agreement. In recognition of that interest, Professional shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Professional’s duties or obligations under this Agreement without the prior written consent of the City.
Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 27 “Termination of Agreement.” City acknowledges, however, that Professional, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 26. CONTINUITY OF PERSONNEL.
Professional shall make every reasonable effort to maintain the stability and continuity of Professional’s staff and subcontractors, if any, assigned to perform the Services Professional shall notify City of any changes in Professional’s staff and subcontractors, if any, assigned to perform the Services prior to and during any such performance.
SECTION 27. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Professional. In the event such notice is given, Professional shall cease immediately all work in progress. (b) Professional may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City. (c) If either Professional or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Professional, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Professional or City, all property belonging exclusively to City which is in Professional’s possession shall be returned to City. Professional shall furnish to City a final invoice for work performed and expenses incurred by 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 Consultant is given written notice of temporary suspension. If City gives such notice of temporary suspension, Consultant shall immediately suspend its activities under this Agreement. A temporary suspension may be issued concurrent with the notice of termination provided for in subsection A of this section. (f) Notwithstanding any provisions of this Agreement, Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any breach of this Agreement by Consultant, and City may withhold any payments due to Consultant until - 22 -
such time as the exact amount of damages, if any, due City from Consultant is determined.
(g) In the event of termination, Consultant shall be compensated as provided for in this Agreement, except as provided in Section 11 Equipment Purchase and Other Capital Expenditures Part C.
SECTION 28. DEFAULT.
In the event that Professional is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Professional for any work performed after the date of default. Instead, the City may give notice to Professional of the default and the reasons for the default. The notice shall include the timeframe in which Professional may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant.
During the period of time that Professional is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Professional does not cure the default, the City may take necessary steps to terminate this Agreement under Section 27 “Termination of Agreement.” Any failure on the part of the City to give notice of the 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 29. EXCUSABLE DELAYS.
Professional shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Professional. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 30. CLAIMS FILED BY CITY’S CONSTRUCTION CONTRACTOR. (a) If claims are filed by City’s construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
(b) Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement. - 23 -
(c) Services of Consultant’s personnel in connection with City’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
SECTION 31. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished toProfessional in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 32. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: Engineering Department
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Consultant: HR Green Pacific, Inc.
Attn: Timothy Hartnett
44651 Village Court, Suite 123
Palm Desert, CA 92260
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 33. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Professional represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Professional to the performance of its obligations hereunder.
SECTION 34. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 36 “Amendment” and the City Manager’s contracting authority under the Cathedral City Municipal Code. - 24 -
SECTION 35. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 36. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Professional and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Cathedral City Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
Consultant shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been issued. There shall be no change in Consultant’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this Agreement without prior written approval by City.
SECTION 37. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Professional shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 38. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 39. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 40. CONTINGENT FEE.
Consultant warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an - 25 -
agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this Agreement without liability; pay 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.
SECTION 41. DEBARMENT AND SUSPENSION.
(a) The Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the Consultant or any person associated therewith in the capacity of owner, partner, director, officer or manager:
(i) Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; (ii) Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; (iii) Does not have a proposed debarment pending; and
(iv) Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
(b) Any exceptions to this certification must be disclosed to City. Exceptions will not necessarily result in denial of recommendation for award but will be considered in determining responsibility. Disclosures must indicate the party to whom the 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. General Services Administration are to be determined by FHWA.
SECTION 42. NATIONAL LABOR RELATIONS BOARD CERTIFICATION.
In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
SECTION 43. ENTIRE AGREEMENT.
- 26 -
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Professional and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 44. PROMPT PAYMENT FROM CITY TO CONSULTANT
The City shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from Consultant on a professional service agreement. If the City fails to pay promptly, the City shall pay interest to the Consultant, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the City shall act in accordance with both of the following:
(1) The City shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The City must return any payment request deemed improper by the City to the Consultant as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
SECTION 45. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby, and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 46. ELECTRONIC SIGNATURE
The Parties agree that, in accordance with the City’s Electronic Signature Use Policy, adopted on August 10, 2023, and as amended thereafter, the Parties may use electronic signatures to execute 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 force and effect as if this Agreement were executed by hand. Contractor acknowledges that it has had an opportunity to request and review the City’s Electronic Signature Use Policy, and Contractor agrees to comply with the Electronic Signature Use Policy. Contractor agrees to indemnify, defend, and hold the City harmless from any claim, damage, or liability associated with transmitting an electronic signature or an electronically signed record by electronic transmission.
SECTION 47. FEDERAL FUNDS
- 27 -
In the event the Services are funded either in whole or in part by a federal grant, Consultant shall comply with the requirements of Exhibit “D” “Federal Funds.” SECTION 48. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF CATHEDRAL CITY CONSULTANT COMPANY NAME
__________________________ ___________________________
Charles P. McClendon By: Timothy Hartnett
City Manager Its: Vice President & Principal-in-Charge
ATTEST: ___________________________
By:________________________
Its:________________________
___________________________
Tracey R. Hermosillo, CMC
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: PROFESSIONAL’S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO
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
A-1
EXHIBIT "A"
SCOPE OF SERVICES
See next page for HR Green Pacific, Inc. Scope of Services PAGE | 1
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY
SCOPE OF SERVICES
Based on the City’s RFQ/P, HR Green proposes the following scope of work For the Tropical Storm Hilary: Date Palm Drive Pavement Reconstruction Project (C08684):
1. PROJECT MANAGEMENT AND ADMINISTRATION
HR Green will manage all day-to-day activities throughout the project duration, ensuring seamless coordination among all stakeholders. We will begin with a project kick-off meeting with Cathedral City staff to discuss project goals, timelines, and deliverables. Regular progress meetings will follow to track milestones, cost estimates, and overall advancement. Additionally, we will provide monthly progress reports, meeting minutes, and schedule updates, ensuring transparency and consistent communication with the City throughout the project lifecycle.
DELIVERABLES: Kick-off Meeting Agenda and Minutes, Monthly Progress Reports, Schedule Updates, Meeting Agendas and Minutes for follow-up meetings.
2. FIELD WORK, PRELIMINARY PLANS, INVENTORY, AND STANDARDS
2.1 - DESKTOP EVALUATION. Our team will conduct a thorough field investigation of the project site, starting with data collection and evaluation of all existing relevant documentation including City standard plans and specifications, as-built drawings, utility maps, survey data, traffic data, geotechnical reports (if available), storm damage assessment reports, and information related to the Tropical Storm Hilary event and subsequent cleanup operations.
2.2 - FIELD RECONNAISSANCE. We will perform on-site evaluations to assess current conditions, verify project limits, identify potential constraints (access, existing features, environmental sensitivities), observe traffic patterns, and photographically document the areas requiring pavement reconstruction, the Vista Chino intersection, and the Los Gatos Road intersection drainage area. We will first walk the corridor early in the project to verify the base maps and identify key features/constraints. We will perform another field day after completion of the roughly 60% plans for a thorough review of the anticipated design. City staff will be invited to this 2nd field day.
2.3 - TOPOGRAPHIC SURVEY AND MAPPING. We will first establish a site-wide network of horizontal/vertical control to serve as the basis for any subsequent boundary, topographic, or construction staking surveys that may be required. We will reference the California Coordinate System of 1983 (CCS83) horizontally, and the Noth American Vertical Datum 1988, vertically or local agency vertical datum. We will conduct the field measurement necessary to re-trace the centerlines and rightsof-way of the project. Survey monuments located and indicated on the survey shall be limited to existing, centerline monuments found to be present along the streets and all associates ties as indicated.
We will then perform a field topographic survey to document existing site topography and planimetrics.
Substantial visible improvements will be located within the street right of way, including utilities, manholes, valve covers, utility vaults and covers, signposts, signs, trees, utility poles, traffic signal poles, cross gutters, local depressions, catch basins, driveway openings, sidewalks, corner access ramps, fire hydrants, parkway drains, etc. Visible indications of surface utilities lying within the project limits will be located, as will accurate lid/rim elevations for drainage structures present.
PAGE | 2
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY Street cross sections will be taken at 25-foot intervals from right of way to right of way. The crosssectional data will consist of Back of Walk, Top of Curb, Flow Line, Gutter Lip, and Crown for both sides of the street. All driveway midpoints will be collected and street intersections will be completely surveyed.
Deliverables will include a 10’ scale AutoCAD Civil 3D drawing file with 1’ contour intervals along with the Ascii point file of the survey points collected in the field.
2.4 - UTILITY COORDINATION. HR Green is a member of the USA Dig Alert design service, from which we can download contact information to obtain plans of existing utilities within the project limits. If the City also maintains a list of utility contacts HR Green will combine that information with what is provided via Dig Alert to complete a comprehensive list of contacts. HR Green will contact this list of potentially affected utilities early in the project using the City’s standard utility letter format. If the City does not have a preferred format, HR Green will provide a sample for the City’s review and approval. It is important to gather utility information as early as possible to complete the base mapping for the project.
All utilities will be shown on the proposed improvement plans.
A total of three utility notification letters will be sent out through the course of the project:
1st Letter – Shortly after the Notice to Proceed is issued requesting utility information 2nd Letter – After the completion of the 60% plans to confirm proper location of existing facilities and serve as a “Notice to Prepare to Relocate” if deemed necessary 3rd Letter – After completion of 100% plans and serve as the “Notice to Relocate Immediately” if deemed necessary
Copies of all communication with the utility companies and the utility disposition matrix will be kept throughout the project and will be submitted to the City with each progress submittal. Utility coordination will be in accordance with Chapter 13 of the LAPM, which may include issuing NTOs, determining prior rights, and utility agreements as necessary. This task does not include the design of potentially relocated utilities.
2.5 - DRAINAGE ANALYSIS. Our team will conduct a comprehensive Hydrology and Hydraulics (H&H) analysis to support the design of critical drainage improvements along the project corridor, with a particular focus on the Los Gatos Road intersection and adjacent areas. The primary objective of this task is to identify and quantify stormwater flows contributing to the site, evaluate existing drainage conditions, and develop proposed improvements that mitigate flooding risks and support the longevity of the roadway infrastructure.
To initiate this effort, we will review all relevant background data provided by the City, including prior drainage studies, FEMA floodplain mapping, stormwater system as-builts, City’s stormwater management standards, and site-specific information obtained through field reconnaissance and topographic survey. We will also delineate drainage areas using aerial imagery, and available GIS information to establish the extent of contributing watersheds. Hydrologic modeling will be performed using methodologies in accordance with Riverside County Flood Control and Water Conservation District (RCFC&WCD) standards, with rainfall data and storm recurrence intervals based on local PAGE | 3
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY design storm criteria. This will include 10-, 25-, and 100-year events, allowing us to estimate peak discharges and assess runoff characteristics under various storm conditions.
Building upon the hydrologic results, a hydraulic analysis will be completed to assess the capacity of the existing drainage infrastructure and the roadway surface to convey runoff. This analysis will evaluate inlets, pipes, and culverts to determine whether upgrades are necessary to accommodate design flows consistent with the City’s stormwater management standards. Where deficiencies are identified, such as along the Los Gatos outfall, we will develop conceptual designs for new or improved drainage systems. Hydraulic modeling will be performed using industry-standard tools and our team will analyze the system’s behavior under surcharged conditions to assess ponding and overland flow risks.
The findings and recommendations from both the hydrologic and hydraulic analyses will be compiled in a comprehensive Drainage Analysis Technical Memorandum. This technical report will include a description of the methods and assumptions used, delineation maps, flow calculations, system capacity evaluations, and proposed improvements. These recommendations will be utilized to guide in the preparation of final plans for the project.
2.6 - PRELIMINARY PLANS. Following the steps above, we will develop preliminary improvement plans that incorporate both our findings and input from stakeholders. These initial plans will serve as the foundation for the project's next steps.
Plan sheets are expected to include:
Title Sheet (1) (Scale: NA)
Typical Sections (2) (Scale: NA)
Plan View Paving Sheets (3) (Scale: 1” = 40’)
Storm Drain Sheets (2) (Scale: 1” = 20’)
Signing and Striping Sheets (3) (Scale: 1” = 40’)
DELIVERABLES: Field evaluation report with photos, Base maps and inventory, Utility notification letters, Copies of utility correspondence, Utility coordination matrix, Draft and final drainage analysis memo, Preliminary Improvement Plans.
3. ENVIRONMENTAL DOCUMENTATION
3.1 – ENVIRONMENTAL COORDINATION AND MANAGEMENT. This task facilitates the conduct of routine environmental coordination and management tasks by our Senior Project Manager throughout the contract performance period including but not limited to internal coordination with staff, subconsultant coordination, maintaining cost and schedule controls, and maintaining communication with the City and others as warranted. This task also includes attendance of 4 virtual project meetings.
3.2 – PREPARE PROJECT DESCRIPTION. Our team will prepare a Project Description in full compliance with the content provisions set forth in §15124 of the State CEQA Guidelines, as amended. The requirements of this CEQA report section will also satisfy Project Description requirements promulgated under NEPA with regard to the description of the physical improvements associated with the proposed project.
PAGE | 4
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY
3.3 – PREPARE THE PES. The purpose of PES is to determine environmental concerns, including the potential presence of any sensitive environmental resources within the project area. The Draft PES will fully describe the project, identify preliminary design information, examine the project for potential environmental effects, identify required technical studies and analysis and permits, identify the preliminary environmental document that would be necessary for the project, and identify any public availability or public hearing on the project. Additionally, to support the conclusions within the PES form, a preliminary environmental investigation will be provided to briefly explain how the project complies with applicable federal mandates. After the Draft PES has been accepted by the City, City staff will submit the Draft PES to Caltrans District 8 Professionally Qualified Staff (PQS) for their review and comment. It is expected that Caltrans may take up to 30 days to review and comment on the PES.
After receiving comments from Caltrans, UltraSystems will revise the PES to reflect all comments received from Caltrans.
3.4 – AIR QUALITY/GREENHOUSE GAS EMISSIONS ASSESSMENT (OPTIONAL). If required, our team will first prepare an air quality and greenhouse gas (GHG) emissions technical study to support the CEQA NOE. The air quality and greenhouse gas (GHG) emissions technical study will use information from the 2022 Air Quality Management Plan. We also expect that, as part of the approval of the PES, Caltrans will require that an air quality report (AQR) be prepared. While similar in scope to the CEQA air quality study, but more limited in scope, it emphasizes operational carbon monoxide and particulate emissions. WE will use the latest template from the Caltrans website. Upon review of the AQR, Caltrans will determine whether a project-level air quality conformity analysis (AQCA) is needed. If so, we will prepare it, using Caltrans’ template.
3.5 – BIOLOGICAL RESOURCES ASSESSMENT. Our team will conduct a preliminary biological analysis, and provide the following tasks: (1) identify species occurrence potential and their habitats, and (2) determine the effects of construction and operation of the proposed project on protected plant and animals in and within 500 feet of the project location.
Maps with various overlays will be examined to identify: (1) potential presence of special status species, including federal, State, and locally protected species and their habitats, (2) proposed and final critical habitats, (1) wetlands and other waters of the United States (WOUS) and waters of the State (WOS), (4) soil classifications to determine potential to support special status plant and animal species, and (5) wildlife corridors to determine potential for large scale wildlife movement corridors within or adjacent to the project.
A senior biologist with experience with the flora and fauna in the local area will review these data, and conduct a reconnaissance-level biological survey to determine the potential for occurrence of special status species protected under the California Endangered Species Act (CESA), Federal Endangered Species Act (FESA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA), and local ordinances in or within at least 500 feet of the project site.
Additionally, field photos and global positioning systems GPS coordinates of biological resources will be recorded with a sub-meter accuracy Trimble™ unit.
PAGE | 5
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY A Natural Environment Study – Minimal Impact (NES-MI) Report will be prepared in accordance with the California Department of Transportation (Caltrans) Guidance for Chapter 2 Natural Environment Study available on the SER online resource.
3.6 – ARCHAEOLOGICAL SURVEY REPORT (ASR): Our team will prepare ASR with a Phase I Records Search for a 1/2 mile radius of the project site. The Native American Heritage Commission (NAHC) would be contacted to request a search to identify Sacred Lands and cultural significant sites, if any, and obtain a list of Native American tribes, organizations and interested individuals that should be contacted to provide information on culturally important sites within the one-half mile Area of Potential Effect (APE). Our team will prepare the APE to be approved by Caltrans, D-8. Prehistoric and historic archaeological literature and record reviews would include prior Environmental Impact Reports (EIRs), cultural technical reports, site records, previous assessments, research designs, monitoring programs, and related cultural documentation to identify cultural resources within the APE. Records will be reviewed at the California Historical Information Systems (CHRIS) Center in Fullerton, CA.
A pedestrian survey of the project site following standard professional archaeological procedures would be conducted to determine if cultural resources are present on the surface and identify areas with a high possibility of containing subsurface cultural resources. Artifacts, features, sites and structures greater than 50 years of age would be photographed and recorded. Based on these data, a Phase I Cultural Resource Survey Report would be prepared to: (1) document research methodology and findings, (2) provide recommendations for avoidance or preservation of cultural resources that may be encountered during construction or other project activities, and (3) provide mitigation measures to protect and preserve cultural resource if avoidance is not feasible in compliance with NEPA and local standards. A site record and/or site record update would be completed and submitted to appropriate agencies upon completion of the field survey.
3.7 – NOISE IMPACT ASSESSMENT. Our team will prepare a Noise Impact Assessment that will form the basis of the noise section for this project. This study will document ambient noise levels experienced along studied roadway segments and at the property lines of any existing sensitive receivers near roadway alignment. It will estimate noise levels with project operation and existing sources of literature documenting stationary sources. Ambient noise levels will be documented using a Quest Technologies, SoundPro, DL-1-1/3 noise meter that meets the standards outlined in ANSI/ASA S1.13-2020 (American National Standard Measurement of Sound Pressure Levels in Air).
Noise levels generated by construction activities will be calculated. Our team has substantial experience with calculating noise levels, including demolition and site preparation, excavation, and building construction. Estimated construction noise levels will be compared to the General Plan Noise Element, SWIP and the Municipal Code to determine whether significant impacts would occur. Using noiseprediction modeling, we will determine the potential for the project to cause a substantial permanent noise increase above levels without the project at the property line. Predicted noise levels will be compared to adopted thresholds and goals, policies, and objectives from the General Plan and conclusions will be drawn as to whether any potential increase would represent a significant acoustical impact requiring mitigation. Noise levels generated by on-site uses, machinery during construction, construction delivery trucks, and landscape equipment, will also be discussed and compared to adopted standards. Mitigation will be proposed for all significant noise impacts.
PAGE | 6
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY
3.8 – INITIAL SITE ASSESSMENT (ISA). An ISA will be completed in accordance with ASTM Designation E1527-05 and the AAI Rule (40 CFR 312) following guidelines and the ISA Checklist adopted by Caltrans. Research records provided by Environmental Data Resources (EDR) or a similar service will be used to obtain regulatory agency database information.
3.9 – HISTORIC PROPERTY SURVEY REPORT (HPSR). Our team will prepare a Historic Property Survey Report (HPSR) package in accordance with Caltrans guidelines to meet the requirements of Section 106 of the National Historic Preservation Act and the Caltrans Programmatic Agreement. The objective of this task is to identify all historic properties, as defined by Section 106 regulations, that may be present with the Area of Potential Effects (APE), or those that were previously determined to qualify as historic properties with SHPO concurrence. The APE will include the project alignments along Date Palm Drive, 30th Avenue, Los Gatos Road and Vista Chino and will encompass both the area of direct effects and the area of indirect effects to be delineated as necessary in consultation with Caltrans District 8 Cultural Studies staff.
To complete the HPSR package, our team will pursue the following research procedures and document the methods and results in accordance with Caltrans requirements:
Conduct a historical/archaeological resources records search at the South Central Coastal information Center of the California Historical Resources Information System in Fullerton, California. Contact the Native American Heritage Commission (NAHC) for a Sacred Lands File search to identify potential sites of Native American traditional cultural value in or near the APE and to obtain a referral list of recommended local representatives for further consultation. Contact the recommended local Native American tribes and individuals, both in writing and by telephone, in consultation with Caltrans District 8 Native American Coordinator, for tribal input regarding the proposed undertaking.
Consult with appropriate City staff members and local historical organizations for community input on cultural resources issues.
Pursue historical background research to establish a historic context for the project location, review past land use in the vicinity of the APE and document the history of any features of historical origin identified within the APE.
Conduct an intensive-level, pedestrian field survey of the APE following standard professional procedures to identify any buildings, structures, objects, sites, or artifact deposits of prehistoric or historical origin (i.e., more than 50 years of age).
Field-record all prehistoric or historical features in the APE, if any, and prepare standard site record forms for inclusion in the California Historical Resources Information System. Complete a Historic Properties Survey Report (HPSR), an Archaeological Survey Report (ASR), a Historical Resources Evaluation Report (HRER) (if necessary), and other supporting documents as specified in Caltrans guidelines.
3.10 – FINDING OF EFFECT (FOE) (OPTIONAL). Our team will prepare a Finding of Effect (FOE) to determine whether the undertaking would constitute an adverse effect under Section 106 provisions. If an adverse effect is identified, the FOE will propose appropriate mitigation measures to reduce it to a level of less than significant.
Upon Caltrans approval of, and SHPO concurrence to, the FOE and the adequacy of the mitigation measures, we will implement the proposed mitigation program. For any known historic properties, typical mitigation measures will include the following procedures:
PAGE | 7
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY Photo-record the structural and architectural characteristics of these features at the appropriate level of Historic American Buildings Survey (HABS)/Historic American Engineering Record (HAER), to be completed by a specialty HABS/HAER photographer using perspective-adjusted equipment and supplemented with standard digital photography. The photographs will include overviews, elevations, and representative details.
Compile detailed structural, architectural, and historical data on the features in standard HABS/HAER report format for submittal as mitigative recordation, complemented by the HABS/HAER photographs and drawings described above.
3.11 – CEQA NOTICE OF EXEMPTION (NOE) (OPTIONAL). Our team will prepare an Attachment to a NOE.
We will conduct field reconnaissance and photograph on-site and surrounding land uses. Sources of data for our analysis would include City’s General Plan, Municipal Code, and other readily available resources. The NOE will include the Project Description and Justification Why the Project is Exempt from CEQA.
Upon receipt of City comments, we will revise the attachment; our scope and fee proposal assume one round of City comments and revisions.
Our team will then prepare the NOE. We will post the NOE with the Riverside County Clerk. The payment of posting fee ($50.00) needed to file the NOE with the County Clerk is included in our fee proposal. A copy of the NOE will also be sent to the State Clearinghouse.
DELIVERABLES: Draft and Final Project Description, Screencheck Draft PES to City, Draft PES for Caltrans, Final PES, Air Quality Impact Assessment/GHG Emissions Technical Study; Federal Air Quality Report, including PM Conformity Hot Spot Analysis Project Summary Form for Interagency Consultation; and FHWA Air Quality Conformity Analysis, Draft NES-MI report to City, Draft NES-MI to Caltrans for review. Final NES-MI report, APE map, Standard Caltrans-format ASR package with all necessary supporting documents, Noise Impact Assessment Technical Study, Initial Site Assessment (ISA), Standard Caltrans-format HPSR package with all necessary supporting documents, Standard Caltrans-format FOE package with all necessary supporting documents, HABS/HAER recordation for each historic property, Draft and final CEQA attachment, Final NOE
4. RIGHT OF WAY EXHIBITS
After completion of the preliminary plans, HR Green will prepare Right-of-Way Plans, which will be separate drawings from those used for design and construction details. The Right-of-Way Plans will show alignment, removal of improvements, drainage facilities, property lines and ownership, other land survey information, and existing right of way/known easements. We will also include plan details, which will require additional right of way or easements during the construction phase of the project such as grading limits, temporary erosion control, etc. Right-of-Way Plans include title sheet, typical sections, and plan view only sheets. Areas of new right-of-way, permanent easements and/or temporary easements required from each individual property owner will be shown in tabular form on the respective sheets. Utilizing the ROW plans, our team will then prepare individual legal descriptions and plat maps for each affected property. These exhibits will be delivered to the City for their use to acquire the necessary ROW.
PAGE | 8
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY DELIVERABLES: ROW Plans, Legals and Plats (up to 2)
5. PLANS, SPECIFICATIONS, AND ESTIMATES (PS&E)
Once the preliminary plans and environmental documentation are approved, HR Green will move forward with the development of the final Plans, Specifications, and Estimates (PS&E). The final designs will meet all relevant standards, including those set by Caltrans, AASHTO, and Cathedral City.
Plan sheets are expected to include:
Title Sheet (1) (Scale: NA)
Index Sheet and Construction Notes (1) (Scale: NA)
Typical Sections (2) (Scale: NA)
Details (5) (Scale: 1” = 10’)
Plan View Paving Sheets (3) (Scale: 1” = 40’)
Intersection Grading Sheets (2) (Scale: 1” = 20’)
Storm Drain Sheets (2) (Scale: 1” = 20’)
Signing and Striping Sheets (3) (Scale: 1” = 40’)
Total Anticipated Sheets = 19
Comprehensive technical specifications, including General Provisions, Special Provisions (tailored to the project specifics and incorporating FHWA requirements), and reference to relevant City and Caltrans Standard Specifications will also be prepared.
Along with the detailed design plans and specifications, we will prepare an engineer’s estimate of probable construction costs, ensuring the estimates reflect accurate, market-based pricing.
The final PS&E submittals will undergo two reviews—at 90% and 100% completion—to verify that the project designs are fully optimized and ready for implementation.
DELIVERABLES: 90% PS&E Submittals, 100% PS&E Submittals.
6. BIDDING ASSISTANCE
During the bidding phase, HR Green will support the City by responding to contractor inquiries and ensuring clarity on all aspects of the project plans and specifications. We will provide timely responses to Requests for Information (RFIs) and assist in the preparation of any necessary addenda to address contractor questions. Additionally, our team will attend a pre-bid meeting to clarify technical aspects and ensure the contractors understand the project requirements. This process will help maintain the integrity of the bidding phase and provide all potential bidders with the necessary information.
DELIVERABLES: Responses to Contractor RFIs, Addenda as Needed, Pre-Bid Meeting Attendance and Minutes.
PAGE | 9
DATE PALM DRIVE RECONSTRUCTION PROJECT | CITY OF CATHEDRAL CITY
7. CONSTRUCTION SUPPORT
HR Green will continue to provide support during the construction phase to ensure that the project is implemented according to the approved plans and specifications. We will attend the pre-construction meeting and remain available to answer any RFIs that arise during construction. Additionally, we will review and approve submittals and shop drawings as needed. After construction is complete, our team will prepare final Record Drawings, incorporating contractor-provided redlines to document the as-built conditions of the project.
DELIVERABLES: Responses to Construction RFIs, Submittal and Shop Drawing Reviews, Final Record Drawings (As-Built Plans).
B-1
EXHIBIT "B"
COMPENSATION
See next page for HR Green Pacific, Inc. Cost Proposal.
HR GREEN - FEE PROPOSAL DETAIL - FHWA FUNDED
PROJECT NAME: TROPICAL STORM HILARY: DATE PALM DRIVE PAVEMENT RECONSTRUCTION PROJECT NUMBER: 2402285 CLIENT: CITY OF CATHEDRAL CITY CLIENT CONTACT: ANDRES PEREZ PROJECT MANAGER: CHASE KEYS 2 120 10 20 120 128 120 88 60 192
$ 381.88 $ 278.28 $ 318.83 $ 347.42 $ 196.44 $ 151.80 $ 123.40 $ 121.40 $ 113.69 $ 106.42 $ $ $ $ 1.439,333 6.7367 0.388,13 9.384,96 $ $ $ $ 9.337,532 7.303,491 0.180,841 5.338,601 $ $ 7.416.25,3863,402 $ $ $ $ 1104144.0, 3430191.6, 4563285.6, 00285.
0.005453699 0.238449223 0.02276642 0.049615755 0.16832831 0.138744679 0.105738803 0.076285607 0.048709455 0.145908045 0% 0% Hartnett Keys York Panza Casillas Lynn MacDonald Procaccio Mahmud Johnson, Phil TASK DESCRIPTION OF TASK PIC PROJ MGR QA/QC SR ENGR LEAD DSNR PROJ ENGR STAFF ENGR II STAFF ENGR II STAFF ENGR I CAD TECH Reimbursables Sub Total Total
TASK 1 PROJECT MANAGEMENT AND ADMINISTRATION $ $ 68.127,22 00.591 - $ $ 68.619,222 60 2 2 20 0 0 0 0 0 00.591 -TASK 2 FIELD WORK / PRELIMINARY PLANS / INVENTORY / STANDARDS $ $ 74.221,24 00.09 $ $ 15.636,71 89.848,950 10 2 12 20 80 30 28 40 64 15.636,71 00.09
2.1 Desktop Evaluation $ 05.276 $ $ - - $ 05.276 2 4
2.2 Field Reconnaissance $ $ 77.855,2 00.09 $ - $ 77.846,2 8 8 0.009
2.3 Topographic Survey and Mapping $ 07.524 $ - $ $ 15.636,71 12.260,81 4 1.563,671 rvyeu SLC
2.4 Utility Coordination and Mapping $ 64.326,3 $ $ - - $ 64.326,3 2 2 8 16
2.5 Drainage Analysis $ 97.739,81 $ $ - - $ 97.739,81 4 12 60 402.6 Preliminary Plans $ 62.409,51 $ $ - - $ 62.409,51 4 2 10 20 20 20 40 TASK 3 ENVIRONMENTAL DOCUMENTATION $ $ 75.565,5 - $ $ 35.583,39 01.159,890 20 0 0 0 0 0 0 0 0 35.583,39 -
3.1 Environmental Coordination and Management $ 54.254,4 $ - $ $ 87.727,31 32.081,81 61 smtesytSralU 8.772,731
3.2 Prepare Project Description $ 11.311,1 $ - $ $ 36.120,4 47.431,5 4 smtesytSralU 3.612,04
3.3 Preliminary Environmental Study (PES) $ $ - - $ $ 12.499,61 12.499,61 smtesytSralU 1.249,961
3.4 Air Quality/Greenhouse Gas Emissioin Assessment (OPTIONAL FUTURE TASK) $ $ - - $ $ - -
3.5 Biological Resources Assessment $ $ - - $ $ 57.458,11 57.458,11 smtesytSralU 5.745,811
3.6 Archaeological Survey Report (ASR) $ $ - - $ $ 16.776,9 16.776,9 smtesytSralU 1.677,69
3.7 Noise Impact Assessment $ $ - - $ $ 37.569,61 37.569,61 smtesytSralU 3.756,961
3.8 Initial Site Assessment (ISA) $ $ - - $ $ 00.890,7 00.890,7 smtesytSralU 0.089,07
3.9 Historic Property Survey Report (HPSR) $ $ - - $ $ 28.540,31 28.540,31 smtesytSralU 2.854,031
3.10 Finding of Effect (FOE) (OPTIONAL FUTURE TASK) $ $ - - $ $ - -
3.11 CEQA Notice of Exemption (NOE) (OPTIONAL FUTURE TASK) $ $ - - $ $ - - TASK 4 RIGHT OF WAY EXHIBITS $ $ 27.669,3 - $ $ 03.782,5 20.452,9 0 2 0 0 8 0 8 0 0 8 03.782,5 -CL Survey TASK 5 PLANS, SPECIFICATIONS, AND ESTIMATES (PS&E) $ $ 19.438,85 - - $ $ 19.438,850 22 6 6 52 48 72 60 20 120 - -
5.1 Improvement Plans $ 96.211,25 $ $ - - $ 96.211,25 16 6 6 40 40 60 60 20 120 Title Sheet $ $ - - $ $ - -
Index Sheet and Notes $ $ - - $ $ - -Typical Sections $ $ - - $ $ - -Details $ $ - - $ $ - -Plan View Paving Sheets $ $ - - $ $ - -Intersection Grading Sheets (Los Gatos) $ $ - - $ $ - -Storm Drain Sheets (Los Gatos) $ $ - - $ $ - -Signing and Striping Sheets $ $ - - $ $ - -
5.2 Technical Specifications $ 29.822,3 $ $ - - $ 29.822,3 2 8 4 4
5.3 EOPC $ 03.394,3 $ $ - - $ 03.394,3 4 4 4 8
TASK 6 BIDDING SUPPORT $ $ 27.126,2 - $ $ 27.126,2 - 0 2 0 0 8 0 4 0 0 0 - -TASK 7 CONSTRUCTION SUPPORT $ $ 68.012,4 - $ $ 68.012,4 - 0 4 0 0 12 0 6 0 0 0 - Subs
COST PER HOUR/UNIT (CHARGE-OUT RATE) TOTAL LABOR COST
TOTAL PROJECT COSTS
% OF TOTAL LABOR COST
Labor Task Total
860
ODC Task Total Subs Task Total Task Total
EXPENSES
TOTAL HOURS
HR GREEN - FEE PROPOSAL DETAIL - LOCALLY FUNDED
PROJECT NAME: TROPICAL STORM HILARY: DATE PALM DRIVE PAVEMENT RECONSTRUCTION PROJECT NUMBER: 2402285 CLIENT: CITY OF CATHEDRAL CITY CLIENT CONTACT: ANDRES PEREZ PROJECT MANAGER: CHASE KEYS 2 46 6 4 92 8 92 48 0 164
$ 381.88 $ 278.28 $ 318.83 $ 347.42 $ 196.44 $ 151.80 $ 123.40 $ 121.40 $ 113.69 $ 106.42 $ $ $ $ 1.800,821 6.7367 8.921,91 8.698,31 $ $ $ $ 3.927,081 7.825,3110.441,21 8.272,85 $ - $ 7.635,471 $ $ $ $ 387887.0, 516361.7, 00240. 896648.8,
0.010789319 0.180832037 0.02702395 0.019631454 0.2553093 0.017155336 0.160377651 0.082319751 0 0.2465612 0% 0% Hartnett Keys York Panza Casillas Lynn MacDonald Procaccio Mahmud Johnson, Phil TASK DESCRIPTION OF TASK PIC PROJ MGR QA/QC SR ENGR LEAD DSNR PROJ ENGR STAFF ENGR II STAFF ENGR II STAFF ENGR I CAD TECH Reimbursables Sub Total Total
TASK 1 PROJECT MANAGEMENT AND ADMINISTRATION $ $ 48.307,21 00.051 - $ $ 48.358,212 24 2 2 20 0 0 0 0 0 00.051 -TASK 2 FIELD WORK / PRELIMINARY PLANS / INVENTORY / STANDARDS $ $ 96.841,02 00.09 $ $ 15.636,71 02.578,730 6 2 0 20 0 30 28 0 64 15.636,71 00.09
2.1 Desktop Evaluation $ 05.276 $ $ - - $ 05.276 2 4
2.2 Field Reconnaissance $ $ 77.855,2 00.09 $ - $ 77.846,2 8 8 0.009
2.3 Topographic Survey and Mapping $ 07.524 $ - $ $ 15.636,71 12.260,81 4 1.563,671 rvyeu SLC
2.4 Utility Coordination and Mapping $ 64.326,3 $ $ - - $ 64.326,3 2 2 8 16
2.5 Drainage Analysis $ $ - - $ $ - -
2.6 Preliminary Plans $ 72.868,21 $ $ - - $ 72.868,21 4 2 10 20 20 40 TASK 3 ENVIRONMENTAL DOCUMENTATION $ $ - - $ $ - - 0 0 0 0 0 0 0 0 0 0 - -
3.1 Environmental Coordination and Management $ $ - - $ $ - -3.2 Prepare Project Description $ $ - - $ $ - -3.3 Preliminary Environmental Study (PES) $ $ - - $ $ - -3.4 Air Quality/Greenhouse Gas Emissioin Assessment (OPTIONAL FUTURE TASK) $ $ - - $ $ - -3.5 Biological Resources Assessment $ $ - - $ $ - -3.6 Archaeological Survey Report (ASR) $ $ - - $ $ - -3.7 Noise Impact Assessment $ $ - - $ $ - -3.8 Initial Site Assessment (ISA) $ $ - - $ $ - -3.9 Historic Property Survey Report (HPSR) $ $ - - $ $ - -
3.10 Finding of Effect (FOE) (OPTIONAL FUTURE TASK) $ $ - - $ $ - -3.11 CEQA Notice of Exemption (NOE) (OPTIONAL FUTURE TASK) $ $ - - $ $ - - TASK 4 RIGHT OF WAY EXHIBITS $ $ - - $ $ - - 0 0 0 0 0 0 0 0 0 0 - -TASK 5 PLANS, SPECIFICATIONS, AND ESTIMATES (PS&E) $ $ 72.301,13 - - $ $ 72.301,130 10 2 2 32 8 52 20 0 100 - -
5.1 Improvement Plans $ 60.183,42 $ $ - - $ 60.183,42 4 2 2 20 40 20 100 Title Sheet $ $ - - $ $ - -
Index Sheet and Notes $ $ - - $ $ - -Typical Sections $ $ - - $ $ - -Details $ $ - - $ $ - -Plan View Paving Sheets $ $ - - $ $ - -Intersection Grading Sheets (Los Gatos) $ $ - - $ $ - -Storm Drain Sheets (Los Gatos) $ $ - - $ $ - -Signing and Striping Sheets $ $ - - $ $ - -
5.2 Technical Specifications $ 29.822,3 $ $ - - $ 29.822,3 2 8 4 4
5.3 EOPC $ 03.394,3 $ $ - - $ 03.394,3 4 4 4 8
TASK 6 BIDDING SUPPORT $ $ 27.126,2 - $ $ 27.126,2 - 0 2 0 0 8 0 4 0 0 0 - -TASK 7 CONSTRUCTION SUPPORT $ $ 68.012,4 - $ $ 68.012,4 - 0 4 0 0 12 0 6 0 0 0 - TOTAL HOURS 462
Subs
COST PER HOUR/UNIT (CHARGE-OUT RATE) TOTAL LABOR COST
TOTAL PROJECT COSTS
% OF TOTAL LABOR COST
EXPENSES
Labor Task Total ODC Task Total Subs Task Total Task Total C-1
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Service Provider, its agents, representatives or employees. Service Provider shall procure and maintain the following scope and limits of insurance:
Only the following “marked” requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis to protect Service Provider and City against liability or claims of liability which may arise out of this Agreement in the amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of two million dollars ($2,000,000).
Coverage shall be at least as broad as Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. additional insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for each person, in an amount not less than one million dollars ($1,000,000) for each accident, and property damage insurance in an amount of not less than one million dollars ($1,000,000). A combined single limit policy with aggregate limits in an amount of not less than $2,000,000 shall be considered equivalent to the said required minimum limits. Coverage shall be at least as broad as Insurance Services Office form number CA 0001 covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the approval of the City.
X Workers’ Compensation Insurance: Workers’ Compensation insurance that includes a minimum of one million dollars ($1,000,000) of employers’ liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officials, officers, employees, agents and representatives. In the event a claim under the provisions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Service Provider participating under this Agreement, Service Provider is to defend and indemnify the City from such claim.
X Professional Liability Insurance: Professional liability insurance appropriate to the Service Provider’s profession in an amount not less than one million dollars C-2
$1,000,000 per occurrence. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to Services performed under this Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Service Provider’s services or the termination of this Agreement. During this additional three (3) year period, Service Provider shall annually and upon request of the City submit written evidence of this continuous coverage.
B. Other Provisions. Insurance policies required by this Agreement shall contain the following provisions:
1. All Coverages.
a. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City.
b. Insurance is to be 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 activities Service Provider performs; products and completed operations of Service Provider; premises owned, occupied or used by Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider.
The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees. b. Service Provider’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Service Provider’s insurance.
c. Service Provider’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
C-3
d. Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
e. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Service Provider furnish City with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Service Provider shall furnish certificates and endorsements from each sub-contractor identical to those Service Provider provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers, or the Service Provider shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Service Provider’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
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 August 13, 2025, 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 August 13, 2027, 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 $345,303.34.
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 D-5
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 eightyfive 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 CPAaudited 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 D-6
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 D-7
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 D-8
($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 D-9
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 D-10
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
D-11
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 D-12
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
D-13
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.
D-14
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
D-15
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 D-16
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 nondiscrimination 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.
D-17
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 22%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with D-18
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- D-19
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.
D-20
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 D-21
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.
D-22
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 federalaid 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
D-23
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.
D-24
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 D-25
“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 D-26
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 D-27
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.
D-28
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.
D-29
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), D-30
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 D-31
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
D-32
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, subrecipients 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 D-33
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).
Staff Report
City Council
Item No. 6.E
Meeting
Date:
August 13, 2025
From: John A. Corella, Director of Public Works
Title: Construction Contract Award to Granite Construction Company for the Whispering Palms Trail Class III Bike Route Project (C08672).
RECOMMENDATION:
To award a construction contract to Granite Construction Company in the amount of $672,000.00 for the SB 821 Bicycle and Pedestrian Facilities program for Whispering Palms Trail Class III Bike Route project (C08672); approve a twenty percent (20%) contingency in the amount of $134,400.00 for unforeseeable construction costs, thereby bringing the total project budget to the amount of $806,400.00; and, authorize the City Manager to execute the required contract documents; and, authorize the City Engineer to request bonds and insurance for the project, and issue the notice to proceed.
BACKGROUND:
On February 8, 2023, the City Council formally accepted the Cathedral City Active Transportation Plan (ATP), developed with funding support from the Southern California Association of Governments’ (SCAG) sustainability program. The ATP is intended to help cities across Southern California implement actionable strategies to enhance mobility options for all users, particularly pedestrians, bicyclists, and transit riders. The plan establishes a citywide pedestrian and bicycle network, outlines safe connections between key destinations, and identifies specific infrastructure improvements to support alternative transportation modes.
On February 6, 2023, the Riverside County Transportation Commission (RCTC) issued a call for projects under the FY 2023-24 SB 821 Bicycle and Pedestrian Facilities program. In response, engineering staff identified two projects from the ATP that would significantly improve safety for both bicyclists and pedestrians, and which met the program’s eligibility criteria. The selected projects were:
• Whispering Palms Trail from 30th Avenue to Dinah Shore Drive (Class III Bike Route). • Perez Road from Cathedral Canyon Drive to Date Palm Drive (Class IV Separated Bikeway).
In April 2023, the city submitted individual funding applications for each of the identified projects, both of which were approved by RCTC in July 2023. Following the approvals, the City Council, in August 2023, authorized funding agreements for both projects under the FY 2023-24 SB 821 Bicycle and Pedestrian Facilities program. These agreements formalized the commitments and financial responsibilities of both RCTC and the city, based on the total estimated project costs outlined in the grant applications.
For the Whispering Palms Trail Class III Bike Routes project, the total estimated project cost was $1,062,000. Of this amount, the city was awarded $690,000 (65%) in SB 821 grant funding, with the remaining $372,000 (35%) to be provided through a required local match.
The eligible reimbursable expenses under the SB 821 program include project administration, design, environmental review, and construction.
On December 11, 2024, the City Council awarded a contract in the amount of $35,000 to STC Traffic, Inc. for engineering professional services related to the design of the Whispering Palms Trail Class III Bike Route project. STC Traffic Inc., completed the plans, specifications and estimates for the project on July 3, 2025.
The Whispering Palms Trail Class III Bike Route project proposes a designated on-street route where bicycles and vehicles share the same travel lane. The project spans approximately two miles along Whispering Palms Trail between 30th Avenue and Dinah Shore Drive. Planned improvements include shared lane (“sharrow”) markings, bicycle route signage, speed feedback radar signs, and other striping and signing enhancements to improve safety and visibility. The project also includes pavement rehabilitation based on the current road conditions, ranging from Rubberized Emulsion Aggregate Slurry (REAS) treatment in areas with an average Pavement Condition Index (PCI) of 60, to full removal and reconstruction in deteriorated segments between Vega Road and Baristo Road with an average PCI of 46.
DISCUSSION:
On Sunday, July 6, 2025, the city advertised the invitation to bid, requesting qualified contractors to perform the scope of work described in Bid No. B25-100E, which includes the plans and specifications for this project. The bid specifications include an additive alternate for lowering and raising to grade Coachella Valley Water District’s (CVWD) facilities.
The bid solicitation was made available to contractors for seventeen (17) calendar days and advertised in the following locations:
• Desert Sun- published on July 6, 2025
• PlanIt Print Works- from July 7, 2025, until July 24, 2025 • City’s Website- from July 7, 2025, until July 24, 2025 On July 24, 2025, the city received six (6) bid proposals for this project. The following table ranks each qualified bidder by the total base bid amount.
RANK CONTRACTOR AMOUNT
1 Granite Construction Company – Indio, CA $ 672,000.00 2 Matich Corporation – San Bernardino, CA $ 717,638.00
3 The R.J. Noble Company – Orange, CA $ 732,300.00
4 Onyx Paving Company, Inc. – Anaheim, CA $ 753,717.17
5 Hardy & Harper, Inc. – Lake Forest, CA $ 790,000.00
6 LCR Earthwork & Engineering Corp. – Jurupa Valley, CA $ 826,522.50 The bid tabulation prepared by the Engineering Division is attached to this report for reference.
CVWD rejected the cost for the water facility adjustments proposed by the lowest bidder, therefore, the city will not proceed with the additive alternate of the project. CVWD opted to perform their portion of the work with their own on-call contractor at the time of construction.
Based on the bids received and CVWD’s decision to reject the additive alternate, the lowest responsive and responsible bidder who yields the lowest contract price is Granite Construction Company, from Indio, CA.
Staff are recommending the City Council award a construction contract to Granite Construction Company in the amount of $672,000.00 for the SB 821 Bicycle and Pedestrian Facilities program for Whispering Palms Trail Class III Bike Route project (C08672); approve a twenty percent (20%) contingency in the amount of $134,400.00 for unforeseeable construction costs, thereby bringing the total project budget to the amount of $806,400.00; authorize the City Manager to execute the required contract documents; and, authorize the City Engineer to request bonds and insurance for the project, and issue the notice to proceed.
All work will be performed within the existing city right-of-way. Construction is expected to start in October 2025 and is estimated to be completed by December 2025.
ENVIRONMENTAL ANALYSIS:
These projects are categorically excluded under the National Environmental Policy Act (NEPA) process for federally funded projects per 24CFR58.35 (a)(1) and categorically exempt under the California Environmental Quality Act (CEQA), Section 15301 for existing facilities.
FISCAL IMPACT:
FY 2025-2026 CIP BUDGET
The project is listed in the FY 2025-26 Capital Improvement Program (CIP) with an estimated total programmed budget for construction in the amount of $1,017,000.00 as shown below:
TDA - SB 821 Fund (RCTC) $661,050.00
Measure A (Local Match) $ 75,950.00
Assessment District 85-1 (Local Match) $280,000.00
Total Programmed Construction Budget $1,017,000.00
CONSTRUCTION BUDGET
Granite Construction Company’s base bid was in the amount of $672,000.00. The budget required for the construction of the project will include the base bid amount and a 20% contingency, in the amount of $134,400.00, thereby bringing the total construction budget to $806,400.00, as shown below.
Granite Construction Company $672,000.00
20% Contingency $134,400.00
Construction Total $806,400.00
The following table summarizes the budget allocations for the construction of the project.
FISCAL
YEAR
DESCRIPTION GENERAL LEDGER
ACCOUNT CODES
PROJECT
CODE
AMOUNT ONE TIME
or
ONGOING
2025-2026 TDA -SB 821 Fund 240-100-150-156-
8800-8802 C08672 $524,160.00 One Time
2025-2026 Assessment District 85-1 243-100-150-156-
8800-8802 C08672 $282,240.00 One Time
2025-2026 Total $806,400.00
FIVE-YEAR STRATEGIC PLAN:
Goal-B: Community Investment
Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.
ATTACHMENTS:
1. SB 821 Whispering Palms Trail Class III Bike Route Project – Project Vicinity Map
2. SB 821 Whispering Palms Trail Class III Bike Route Project – Bid Tabulation
3. SB 821 Whispering Palms Trail Class III Bike Route Project – Contract LEGEND:
VICINITY MAP
PROJECT VICINITY MAP
ATTACHMENT
WHISPERING PALMS TRAIL CLASS II BIKE ROUTES
PROJECT VICINITY MAP
CITY OF CATHEDRAL CITY
FY 23-24 TDA ARTICLE 3 / SB 821 BICYCLE AND PEDESTRIAN FACILITIES PROGRAM 1 1 MOBILIZATION LS 1 41,800.00 $ $ 41,800.00 $ 31,505.00 $ 31,505.00 $ 65,000.00 $ 65,000.00 $ 25,000.00 $ 25,000.00 $ 39,100.50 $ 39,100.50 2 TRAFFIC CONTROL LS 1 41,800.00 $ $ 41,800.00 $ 10,000.00 $ 10,000.00 $ 40,000.00 $ 40,000.00 $ 108,175.00 $ 108,175.00 $ 98,200.00 $ 98,200.00 3 STRIPING IMPROVEMENTS LS 1 75,000.00 $ $ 75,000.00 $ 44,475.00 $ 44,475.00 $ 38,000.00 $ 38,000.00 $ 40,000.00 $ 40,000.00 $ 51,500.00 $ 51,500.00 4 FURNISH & INSTALL NEW SIGN ON NEW POST EA 7 $ 150.00 $ 1,050.00 $ 375.00 $ 2,625.00 $ 390.00 $ 2,730.00 $ 500.00 $ 3,500.00 $ 470.00 $ 3,290.00 5 FURNISH & INSTALL 2 NEW SIGNS ON NEW POST EA 4 $ 250.00 $ 1,000.00 $ 475.00 $ 1,900.00 $ 565.00 $ 2,260.00 $ 500.00 $ 2,000.00 $ 520.00 $ 2,080.00 6 REMOVE AND SALVAGE EXISTING SIGN FROM POST EA 25 $ 25.00 $ 625.00 $ 45.00 $ 1,125.00 $ 110.00 $ 2,750.00 $ 50.00 $ 1,250.00 $ 157.00 $ 3,925.00 7 REMOVE AND SALVAGE EXISTING SIGN & POST EA 2 $ 50.00 $ 100.00 $ 75.00 $ 150.00 $ 160.00 $ 320.00 $ 100.00 $ 200.00 $ 300.00 $ 600.00 8 FURNISH & INSTAL NEW SIGN ON EXISTING POST EA 25 $ 100.00 $ 2,500.00 $ 100.00 $ 2,500.00 $ 180.00 $ 4,500.00 $ 125.00 $ 3,125.00 $ 210.00 $ 5,250.00 9 FURNISH & INSTALL SPEED FEEDBACK SIGN ASSEMBLY EA 6 7,500.00 $ $ 45,000.00 $ 10,995.00 $ 65,970.00 $ 13,000.00 $ 78,000.00 $ 11,000.00 $ 66,000.00 $ 11,200.00 $ 67,200.00 10 REAS & CRACK SEAL SF 290,000 $ 1.50 $ 435,000.00 $ 0.68 $ 197,200.00 $ 0.82 $ 237,800.00 $ 0.75 $ 217,500.00 $ 0.71 $ 205,900.00 11 REMOVE 3" AC PAVEMENT SF 98,250 $ 0.50 $ 49,125.00 $ 0.60 $ 58,950.00 $ 1.05 $ 103,162.50 $ 1.00 $ 98,250.00 $ 0.69 $ 67,792.5012 CONSTRUCT 3" AC PAVEMENT TON 1,800 $ 125.00 $ 225,000.00 $ 142.00 $ 255,600.00 $ 140.00 $ 252,000.00 $ 125.00 $ 225,000.00 $ 96.00 $ 172,800.00 $ 918,000.00 $ 672,000.00 $ 826,522.50 $ 790,000.00 $ 717,638.00 A-1 LOWER AND RAISE WATER VALVE TO GRADE PER CVWD STANDARDS EA 25 $ 500.00 $ 12,500.00 $ 2,300.00 $ 57,500.00 $ 1,100.00 $ 27,500.00 $ 2,720.00 $ 68,000.00 $ 1,950.00 $ 48,750.00 A-2 LOWER AND RAISE SEWER MANHOLE TO GRADE PER CVWD STANDARDS EA 8 $ 625.00 $ 5,000.00 $ 3,200.00 $ 25,600.00 $ 1,900.00 $ 15,200.00 $ 2,750.00 $ 22,000.00 $ 2,040.00 $ 16,320.00 $ 17,500.00 $ 83,100.00 $ 42,700.00 $ 90,000.00 $ 65,070.00 $ 935,500.00 $ 755,100.00 $ 869,222.50 $ 880,000.00 $ 782,708.00
UNIT COST TOTAL
Hardy & Harper, Inc. Matich Corporation
ADDITIVE ALTERNATE BID SCHEDULE A: UTILITY
ADJUSTMENT
BASE BID SCHEDULE : WHISPERING PALMS TRL.
UNIT COST TOTAL UNIT COST TOTAL UNIT COST TOTAL
Granite Construction Company LCR Earthwork & Engineering, Corp.
TOTAL ALL BID ITEMS AND ALL ALTERNATIVES
ITEM DESCRIPTION UNIT QUANTITY
Engineer Estimate
UNIT COST TOTAL
TOTAL AMOUNT BASE BID SCHEDULE (BID ITEMS 1-12)
TOTAL ADDITIVE ALTERNATE BID SCHEDULE A
CITY PROJECT No.: 8672
CITY OF CATHEDRAL CITY
WHISPERING PALMS TRAIL CLASS III BIKE ROUTE PROJECT
Bid Tabulation/ Analysis
1 MOBILIZATION LS 1
2 TRAFFIC CONTROL LS 1 3 STRIPING IMPROVEMENTS LS 1 4 FURNISH & INSTALL NEW SIGN ON NEW POST EA 7 5 FURNISH & INSTALL 2 NEW SIGNS ON NEW POST EA 4 6 REMOVE AND SALVAGE EXISTING SIGN FROM POST EA 25 7 REMOVE AND SALVAGE EXISTING SIGN & POST EA 2 8 FURNISH & INSTAL NEW SIGN ON EXISTING POST EA 25 9 FURNISH & INSTALL SPEED FEEDBACK SIGN ASSEMBLY EA 6 10 REAS & CRACK SEAL SF 290,000 11 REMOVE 3" AC PAVEMENT SF 98,250 12 CONSTRUCT 3" AC PAVEMENT TON 1,800 A-1 LOWER AND RAISE WATER VALVE TO GRADE PER CVWD STANDARDS EA 25 A-2 LOWER AND RAISE SEWER MANHOLE TO GRADE PER CVWD STANDARDS EA 8 ADDITIVE ALTERNATE BID SCHEDULE A: UTILITY
ADJUSTMENT
BASE BID SCHEDULE : WHISPERING PALMS TRL.
TOTAL ALL BID ITEMS AND ALL ALTERNATIVES
ITEM DESCRIPTION UNIT QUANTITY
TOTAL AMOUNT BASE BID SCHEDULE (BID ITEMS 1-12)
TOTAL ADDITIVE ALTERNATE BID SCHEDULE A
$ 33,999.67 33,999.67 $ 35,000.00 $ 35,000.00 $
$ 80,000.00 80,000.00 $ 66,000.00 $ 66,000.00 $
$ 47,000.00 47,000.00 $ 45,000.00 $ 45,000.00 $
$ 400.00 $ 2,800.00 $ 375.00 $ 2,625.00
$ 505.00 $ 2,020.00 $ 475.00 $ 1,900.00$ 48.00 $ 1,200.00 $ 45.00 $ 1,125.00$ 80.00 $ 160.00 $ 75.00 $ 150.00$ 107.00 $ 2,675.00 $ 100.00 $ 2,500.00$ 11,750.00 $ 70,500.00 $ 11,000.00 $ 66,000.00 $ 0.83 $ 240,700.00 $ 0.70 $ 203,000.00$ 0.65 $ 63,862.50 $ 0.80 $ 78,600.00$ 116.00 $ 208,800.00 $ 128.00 $ 230,400.00 $ 732,300.00 753,717.17 $
$ 40,000.00 1,600.00 $ 2,000.00 $ 50,000.00 $ $ 28,000.00 3,500.00 $ 2,100.00 $ 16,800.00 $ $ 66,800.00 68,000.00 $
$ 821,717.17 $ 799,100.00
The R.J. Noble Company
UNIT COST TOTAL UNIT COST TOTAL
Onyx Paving Company, Inc.
CITY PROJECT No.: 8672
CITY OF CATHEDRAL CITY
WHISPERING PALMS TRAIL CLASS III BIKE ROUTE PROJECT
Bid Tabulation/ Analysis
Agreement 1300-1
SECTION 1300
AGREEMENT
THIS CONTRACT, by and between the CITY OF CATHEDRAL CITY, a municipal corporation, herein referred to as "City”, and GRANITE CONSTRUCTION COMPANY, herein referred to as, "Contractor."
W I T N E S S E T H:
In consideration of their mutual covenants, the parties hereto agree as follows:
1. Contractor shall furnish all necessary labor, material, equipment, transportation and services for
Bid No. B25-100E
Whispering Palms Trail Class III Bikeway Project City (C08672) (the “Work”), in the City of Cathedral City, California. The Work shall be done in strict conformity with this Contract, approved Change Orders, the Invitation to Bid dated July 6, 2025, Instruction to Bidders, permits issued by the City or other agencies, the General and Specific Project Requirements, Standard Specifications, Plans, Referenced Specifications, the General Conditions, Supplementary Conditions, the Contractor’s Bid dated July 24, 2025, and any addenda thereto (the “Contract Documents”), all of which shall be considered a part hereof as though fully set herein.
2. Contractor will comply with all Federal, State, County, and City of Cathedral City laws, regulations, and policies, which are, as amended from time to time, incorporated herein by reference.
3. All work shall be done in a workman-like manner and to the satisfaction of the City Engineer.
4. Time is of the essence in the Contractor’s performance of the Work for this Contract. The contractor agrees to diligently pursue the performance and completion of the Work in every detail to the satisfaction of the City. The contractor shall commence work after the issuance of a written Notice to Proceed and agrees to have all work completed within 90 Calendar days from the date of Notification to Proceed.
5. In consideration of said work, City agrees to pay Contractor such sums as shall be approved by the City Engineer at lump sums and/or unit prices stated in the Contractor's Bid. The total consideration to Contractor for all Work shall not exceed six-hundred and seventy-two thousand dollars, and zero cents ($672,000.00). All payments shall be subject to approval by the City Engineer and shall be in accordance with the terms, conditions, and procedures provided in the Contract Documents.
6. The Contractor shall not knowingly pay less than the general prevailing rate for per diem wages, as determined by the State of California Department of Industrial Relations and referred to in the Invitation to Bid, to any workman employed for the work to be performed under this contract; and the Contractor shall forfeit as a penalty to the City the sum of Twenty-Five Dollars ($25.00) for each calendar day, or fraction thereof, for such Agreement 1300-2
workman paid by him or by any subcontractor under him in violation of this provision (Sections 1770-1777, Labor Code of California).
7. Concurrently with the execution of this Contract, Contractor shall furnish bonds of a surety satisfactory to City, as provided in the Contract Documents, the cost of which shall be paid by Contractor.
8. Contractor agrees to indemnify, hold harmless, release and defend (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council and each member thereof, and its officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney's fees and costs of litigation) which in whole or in part are claimed to result from or to arise out of the usage or operation, including the malfunctioning of, or, any injury caused by, any product purchased herein; or any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its employees, representatives, subcontractors, or agents in connection with the performance of this Contract. This agreement to indemnify includes, but is not limited to, personal injury (including death at any time) and damage to property (including, but without limitation, contract or tort or patent, copyright, trade secret or trademark infringement) sustained by any person or persons (including, but not limited to, companies, or corporations, Contractor and its employees or agents, and members of the general public.
9. Except as otherwise required, Contractor shall concurrently with the execution of this Contract, furnish the City satisfactory evidence of insurance of the kinds and in the amounts provided in the Contract Documents. This insurance shall be kept in full force and effect by Contractor during this entire contract and all premiums thereon shall be promptly paid by it. Each policy shall further state that it cannot be canceled without 30 days unconditional written notice to the City and shall name the City as an additional insured. The Contractor shall furnish evidence of having in effect, and shall maintain Workers Compensation Insurance coverage of not less than the statutory amount or otherwise show a certificate of self-insurance, in accordance with the Workers Compensation laws of the State of California. Failure to maintain the required amounts and types of coverage throughout the duration of this Contract shall constitute a material breach of this Contract.
10. Contractor shall forfeit as a penalty to City $25.00 for each laborer, workman, or mechanic employed in the execution of this Contract by said Contractor, or any subcontractor under it, upon any of the work herein mentioned, for each calendar day during which such laborer, workman, or mechanic is required or permitted to work at other than a rate of pay provided by law for more than 8 hours in any one calendar day and 40 hours in any one calendar week, in violation of the provisions of Sections 1810-1815 of the Labor Code of the State of California.
11. In accepting this Contract, Contractor certifies that in the conduct of its business it does not deny the right of any individual to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status as provided in the California Fair Employment Practice Act (Government Agreement 1300-3
Code Sections 12900, et seq.) Contractor agrees that a finding by the State Fair Employment Practices Commission that Contractor has engaged during the term of this Contract in any unlawful employment practice shall be deemed a breach of this Contract and Contractor shall pay to City $500.00 liquidated damages for each such breach committed under this contract.
12. Contractor also agrees that for contracts in excess of $30,000 that apprentices will be employed without discrimination in an approved program in a ratio established in the apprenticeship standards of the craft involved (Sections 1777.5 and 1777.6, Labor Code of California). Contractors who willfully fail to comply will be denied the right to bid on public projects for a period of six months in addition to other penalties provided by law.
13. Contractor shall maintain and keep books and records on a current basis, recording all transactions pertaining to this agreement in a form in accordance with generally acceptable accounting principles. Said books and records shall be made available to the County, the State of California, the Federal government, and to any authorized representative thereof for the purposes of audit at all reasonable times and places. All such books and records shall be retained for such periods of time as required by law, provided, however, notwithstanding any shorter periods of retention, all books, records, and supporting detail shall be retained for a period of at least four (4) years after the expiration of the term of this Agreement.
14. This Contract shall not be assignable by Contractor without the written consent of City.
15. Contractor shall notify the City Engineer (in writing) forthwith when the Contract is deemed completed.
16. In accepting this Contract, Contractor certifies that no member or officer of the firm or corporation is an officer or employee of the City except to the extent permitted by law.
17. Contractor certifies that it is the holder of any necessary California State Contractor's License and authorized to undertake the Work. The Contractor must, at the Contractor’s sole expense, obtain all necessary permits and licenses required for the Work, give all necessary notices and pay all fees and taxes required by law, including without limitation, any business license tax imposed by City. The Contractor represents and declares to Agency that it has all licenses, permits ,qualifications, and approvals of whatever nature which are legally required to practice its professions.
18. The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the contract and/or is paying only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract.
19. The Contractor shall maintain and preserve all such records for a period of at least three years after termination of the contract.
20. The Contractor shall maintain all such records in the City of Cathedral City. If not, the Contractor shall, upon request, promptly deliver the records to the City or reimburse Agreement 1300-4
the City for all reasonable and extra costs incurred in conducting the audit at a location other than at City offices including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.
21. In entering into this Contract or a contract with a subcontractor to supply goods, services, or materials pursuant to this Contract, Contractor and any or subcontractor are deemed to have offered and agreed to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700 of Part 2 of Division 7 of the California Business and Professions Code), arising from purchases of goods, services, or materials for the Contract. This assignment will be deemed made and will be come effective at the time City tenders final payment to Contractor, without further acknowledgement by the Parties.
22. The Parties agree that, in accordance with the City’s Electronic Signature Use Policy, adopted on August 10, 2023, and as amended thereafter, the Parties may use electronic signatures to execute 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 force and effect as if this Agreement were executed by hand. Contractor acknowledges that it has had an opportunity to request and review the City’s Electronic Signature Use Policy, and Contractor agrees to comply with the Electronic Signature Use Policy. Contractor agrees to indemnify, defend, and hold the City harmless from any claim, damage, or liability associated with transmitting an electronic signature or an electronically signed record by electronic transmission.
Agreement 1300-5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below.
"CITY"
CITY OF CATHEDRAL CITY,
a California municipal corporation
By:_____________________________ Dated: _____________________________ Charles P. McClendon, City Manager
ATTEST:
Dated: _____________________________
Tracey R. Hermosillo, CMC, City Clerk
APPROVED AS TO FORM:
Dated: _____________________________
Eric Vail, City Attorney
“CONTRACTOR”
Dated: By:_______________________________
Name: _______________________________
Title: _______________________________
Dated: By: ____________________________
Name:________________________________
Title: ________________________________
[CONTRACTOR SIGNATURES MUST BE NOTARIZED. IF CONTRACT IS A
CORPORATION OR LIMITED LIABILITY COMPANY, TWO SIGNATURES MUST BE PROVIDED]
Faithful Performance Bond 1310-1
SECTION 1310
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on August 13, 2025, awarded to Granite Construction Compaany, hereinafter designated as the Principal, a Contract for Bid No. B25-100E Whispering Palms Trail Class III Bikeway Project CITY PROJECT NO. C08672, and WHEREAS, said Principal is required under the terms of said Contract to furnish a bond for the faithful performance of said Contract:
NOW, THEREFORE, we, the Principal, and ____________________________, as Surety, are held and firmly bound unto the City in the just and full amount of sixhundred and seventy-two thousand dollars, and zero cents ($672,000.00) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and faithfully perform the covenants, conditions, and agreements in the said contract and any alterations made as therein provided, on his or their part to be kept and performed, at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless, the City, its officers and agents as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and virtue.
It is acknowledged that the Contract provides for one-year guarantee period, during which time this bond remains in full force and effort.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall, in any way, affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract or to the work or to the specifications. Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Faithful Performance Bond 1310-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their seals this _________ day of _________________________________, 2025, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
_____________________________________
Principal
(Seal)
_____________________________________
Signature for Principal
_____________________________________
Title of Signatory
_____________________________________
Surety
(Seal)
_____________________________________
Signature for Surety
_____________________________________
Title of Signatory
_____________________________________
Address of Surety
_____________________________________
Phone # of Surety
_____________________________________
Contact Person For Surety
Payment Bond 1320-1
SECTION 1320
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on August 13, 2025, awarded to Granite Construction Company, hereinafter designated as the Principal, a Contract for Bid No. B25-100E Whispering Palms Trail Class III Bikeway Project CITY PROJECT NO. C08672, and WHEREAS, said Principal is required to furnish a bond in connection and with said Contract, providing that if said Principal, or any of it or its subcontractors shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, the Surety of this bond will pay the same to the extent hereinafter set forth:
NOW, THEREFORE, we, the Principal, and ____________________________, as Surety, are held and firmly bound unto the City in the just and full amount of sixhundred and seventy-two thousand dollars, and zero cents ($672,000.00), executors, administrators, and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, it or its heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor thereon of any kind or for amount due under the Unemployment Insurance Act with respect to such work or labor, or for any amounts due, or to be withheld pursuant to Sections 18806 of the Revenue and Taxation Code of the State of California with respect to such work or labor, then said surety will pay the same in or to an amount not exceeding the amount hereinabove set forth, and also will pay in case suit is brought upon this bond, such reasonable attorney's fees to the City as shall be fixed by the court.
This bond shall insure to the benefit of any and all persons, companies, and corporations named in Section 3181 of the Civil Code of the State of California so as to give a right of action to them or their assigns in any suit brought upon this bond.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition of the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall, in any way, affect its obligations of this bond, and it does hereby waive notice of any change, extension of time, alteration, or addition to the terms of the contract or to the work or to the specifications. Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Payment Bond 1320-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their seals this _________ day of _________________________________, 2025, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
_____________________________________
Principal
(Seal)
_____________________________________
Signature for Principal
_____________________________________
Title of Signatory
_____________________________________
Surety
(Seal)
_____________________________________
Signature for Surety
_____________________________________
Title of Signatory
_____________________________________
Address of Surety
_____________________________________
Phone # of Surety
_____________________________________
Contact Person For Surety
Workers' Compensation Insurance 1330-1
SECTION 1330
WORKERS' COMPENSATION INSURANCE CERTIFICATE
In accordance with California Labor Code Section 1861, prior to commencement of work on the Contract, the Contractor shall sign and file with the City the following certification:
"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract." ______________________________________________
Signature
______________________________________________
Title
______________________________________________
Date
Liability & Insurance Requirements 1340-1
SECTION 1340
LIABILITY AND INSURANCE REQUIREMENTS
1.0 INDEMNIFICATION
Contractor shall defend, indemnify and hold harmless the City, City Council and each member thereof, and every officer, employee and agent of City, from any claim, demand, damage, liability, loss, cost or expense (including, without limitation, attorney’s fees and costs) arising from any intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of the Contractor, or any of the Contractor'’ employees, or any of its subcontractors arising out of work under this Contract.
The City does not, and shall not, waive any rights that it may have against Contractor, any of the Contractor’s employees, or any of its subcontractors under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Contract. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described herein. The City will not be liable for any accident, loss, or damage to the work prior to its completion and acceptance.
2.0 INSURANCE REQUIREMENTS
2.1 General
After award of Contract, the Contractor shall promptly obtain, at its own expense, all the insurance required by Paragraph 1340-2.0, INSURANCE REQUIREMENTS, and shall submit coverage verification for review and approval by the City upon execution of the Contract.
The Notice to Proceed with the Work under this Contract will not be issued, and the Contractor shall not commence work, until such insurance has been approved by the City. The Contractor shall not allow any subcontractors to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and verified by Contractor. Such insurance shall remain in full force and effect at all times during the prosecution of the Work and until the final completion and acceptance thereof.
The Notice to Proceed does not relieve the Contractor of the duty to obtain such insurance as required by Paragraph 1340-2.0 INSURANCE REQUIREMENTS.
2.2 Commercial General Liability Policy
The Contractor shall take out and maintain during the life of the Contract, a Commercial General Liability Policy, on an occurrence basis, with a minimum limit of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage for any one occurrence and a Two Million Dollar Liability & Insurance Requirements 1340-2
($2,000,000) annual project aggregate, for all of the following:
a. Premises Operations, including Explosion, Collapse and Underground (X, C, and U) Coverage.
b. Completed Operations/Products, including X, C, and U Coverage. c. Independent Contractors.
d. Blanket Contractual.
e. Deductible shall not exceed One Thousand Dollars ($1,000).
2.3 Commercial Business Auto Policy
The Contractor shall take out and maintain during the life of this Contract a Commercial Business Auto Policy, on an occurrence basis, with a minimum amount of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage, providing at least all of the following coverage:
a. Coverage shall be applicable to any and all leased, owned, hired, or non-owned vehicles used in pursuit of any of the activities associated with this Contract.
b. Any and all mobile equipment, including cranes, which is not covered under said Commercial Business Auto Policy shall have said coverage provided for under the Commercial General Liability Policy.
c. Deductible shall not exceed One Thousand Dollars ($1,000).
2.4 Workers' Compensation Insurance
The Contractor shall take out and maintain during the life of the Contract, Worker's Compensation and Employers' Liability insurance providing coverage for any and all employees of Contractor:
a. The required policy shall provide coverage for Workers' Compensation (Coverage A).
b. This policy shall provide coverage for One Million Dollars ($1,000,000) Employers' Liability (Coverage B).
2.5 Endorsements
All of the following endorsements are required to be made a part of the policies described in this Section hereof:
a. "The City, City employees and officers, the City Engineer, its consultants, elected officials, agents, and sub-consultants are hereby added as Liability & Insurance Requirements 1340-3
additional insured insofar as Work done under this Contract is concerned." b. "This policy shall be considered primary insurance as respects any other valid and collectible insurance, including self-insured retention, the City may possess, and any other insurance the City does possess shall be considered excess insurance only."
c. "This insurance shall act for each insured, and additional insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company. d. "Thirty (30) days prior written notice of cancellation shall be given to the City. Such notice shall be sent to:
Kevin Biersack, Financial Services Director
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
2.6 Change in Terms
The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to the location identified in Paragraph 1340-2.6.d, Endorsements. The Contractor shall be obligated to pay any extra premium for maintaining the insurance requirements specified herein.
Staff Report
City Council
Item No. 6.F
Meeting Date: August 13, 2025
From: Ryan Hunt, Communications & Events Manager
Title: Balloon Festival Saturday Headliner Options
RECOMMENDATION:
To approve one of four proposed Saturday headliner options for the 11th Cathedral City International Hot Air Balloon Festival, authorize a budget amendment for the selected tier amount, authorize staff to negotiate a shared revenue agreement with SoundSkilz, Inc. for cost recovery where applicable, and authorize the Communications & Events Manager to pursue major sponsorship opportunities to offset production costs.
BACKGROUND:
The Cathedral City International Hot Air Balloon Festival has grown to become one of the region's premier annual events, attracting thousands of visitors to Cathedral City. As we approach the 11th edition of this signature festival, staff is proposing to enhance the event's appeal and attendance through the addition of a headline concert performer.
Based on market research and industry recommendations from SoundSkilz, Inc., our event production partner, we have identified several potential headline artists across different budget tiers that would significantly enhance the festival's draw and economic impact. The proposed concert would serve as a marquee attraction, complementing the traditional hot air balloon displays, family activities, and local entertainment.
SoundSkilz has provided a comprehensive analysis of potential artists ranging from emerging acts in the $15,000-$50,000 range to Grammy Award winners and multi-platinum artists in the $250,000+ category. Artists in the higher tiers typically have millions of social media followers and proven ability to drive substantial attendance increases.
DISCUSSION:
Four-Tier Headliner Options: Staff presents four distinct options for Saturday night headliner programming:
Tier 1 - Current Budget Approach ($0 additional cost): Maintain existing budget parameters and book a high-quality cover/tribute band similar to Queen Nation (already secured for Friday night). This approach provides solid entertainment value with minimal financial risk while maintaining consistency with past festival programming.
Tier 2 - Mid-Level Investment ($50,000-$70,000 range): Feature established artists such as Gavin DeGraw, Neal McCoy, Better Than Ezra, Bowling for Soup, Tonic, or Tracy Byrd.
These artists offer strong regional recognition and proven audience draw while representing a manageable investment level with good potential for sponsorship cost recovery.
Tier 3 - Significant Investment ($100,000-$150,000 range): Secure major touring acts including Billy Currington, Marcus King, Styx, KC & The Sunshine Band, Bush, or Dwight Yoakam. These artists bring substantial name recognition, extensive touring experience, and proven ability to significantly increase attendance and media coverage.
Tier 4 - Premium Investment ($250,000-$350,000 range): Book headline acts such as Nelly, Earth Wind & Fire, Pentatonix, Shaboozey, Dustin Lynch, Warren Zeiders, or Good Charlotte. These artists offer massive social media followings (millions of followers), proven track records of major festival draws, and potential for substantial economic impact to the region.
Strategic Benefits Across All Tiers:
• Significantly increase festival attendance and visitor spending • Enhance Cathedral City's reputation as a cultural destination • Generate substantial media coverage and social media engagement • Attract visitors from beyond the Coachella Valley region • Create opportunities for multi-day visitor stays and increased hotel occupancy • Aid in recruiting hot air balloon pilots who value association with quality productions Revenue Sharing Model: For Tiers 2-4, staff proposes establishing a shared revenue agreement with SoundSkilz, Inc. This partnership model would:
• Distribute financial risk between the City and SoundSkilz • Align both parties' interests in maximizing attendance and revenue • Allow access to higher-tier artists through shared investment • Provide cost recovery opportunities through ticket sales and merchandise Sponsorship Strategy: Higher-tier options create premium sponsorship opportunities that can significantly offset production costs:
• Title sponsorship of the concert stage
• VIP hospitality packages for corporate sponsors
• Brand integration opportunities with the headline performer • Enhanced marketing value for existing festival sponsors • Attraction of new major sponsors seeking association with headline entertainment Balloon Pilot Recruitment Benefit: SoundSkilz has indicated that securing an attractive headline artist will significantly aid in recruiting hot air balloon pilots, as the enhanced event profile makes participation more appealing to pilots who value association with high-quality productions.
FISCAL IMPACT:
The fiscal impact varies significantly based on the selected tier:
Tier 1 - Current Budget ($0 additional cost):
• No budget amendment required - covered within existing Communications and Events budget
Tier 2 - Mid-Level Investment ($80,000 budget amendment):
• Budget amendment of $80,000 to cover artist fees, production costs, and contingencies
• Artist fee range: $50,000-$70,000 plus production requirements Tier 3 - Significant Investment ($175,000 budget amendment):
• Budget amendment of $175,000 to cover artist fees, production costs, and contingencies
• Artist fee range: $100,000-$150,000 plus production requirements Tier 4 - Premium Investment ($400,000 budget amendment):
• Budget amendment of $400,000 to cover artist fees, production costs, and contingencies
• Artist fee range: $250,000-$350,000 plus production requirements Revenue Generation Projections: Based on festival venue capacity of 3,000 seated OR 4,500 standing room (depending on configuration), preliminary revenue estimates include:
Tier 1 - Current Budget:
• Likely ticket pricing: Free for Cathedral City residents, modest pricing for nonresidents ($10-$20) • Minimal additional revenue generation beyond existing festival income • Maintains current sponsorship levels and attendance patterns Tier 2 - Mid-Level Investment:
• Likely ticket pricing: First 500-1,000 tickets free for residents, $25-$45 general admission, $60-$80 VIP
• Potential ticket revenue: $25,000-$45,000 (assuming modest premium pricing and 60-80% capacity)
• Enhanced sponsorship opportunities: $15,000-$30,000 above baseline • Total potential revenue to general fund: $40,000-$75,000 Tier 3 - Significant Investment:
• Likely ticket pricing: First 500-1,000 tickets free for residents, $35-$60 general admission, $80-$100 VIP
• Potential ticket revenue: $50,000-$85,000 (assuming higher premium pricing and 80-95% capacity)
• Enhanced sponsorship opportunities: $30,000-$60,000 above baseline • Total potential revenue to general fund: $80,000-$145,000 Tier 4 - Premium Investment:
• Likely ticket pricing: First 500-1,000 tickets free for residents, $50-$75 general admission, $100-$125 VIP
• Potential ticket revenue: $75,000-$125,000 (assuming premium pricing and nearcapacity crowds) • Enhanced sponsorship opportunities: $75,000-$150,000 above baseline • Total potential revenue to general fund: $150,000-$275,000 Note: Revenue projections are preliminary estimates based on venue capacity and comparable events. Actual results will depend on artist selection, market conditions, ticket pricing strategy, and sponsorship success. All revenue figures represent gross estimates before SoundSkilz revenue sharing arrangements.
Funding for Tier 1 would come from the existing Communications and Events budget (100- 100-130-133-8600-8601). Funding for Tiers 2-4 would require the corresponding budget amendment to the Communications and Events budget. New sponsorship revenue generated through this enhanced programming will be directed to the general fund.
Next Steps: Upon Council direction on preferred tier and budget authorization, staff will:
• Proceed with artist negotiations and booking within the approved tier and budget • Develop sponsorship strategies to maximize revenue to the general fund • Negotiate revenue sharing agreement terms with SoundSkilz • Execute all necessary contracts and production arrangements • Provide Council with post-event summary of fiscal outcomes FIVE-YEAR STRATEGIC PLAN:
This action supports multiple strategic goals:
• Goal F-3: Promote additional community events and celebrations - Enhancing the Hot Air Balloon Festival's programming strengthens its position as a signature community celebration.
• Goal E-2: Promote Cathedral City as a tourist destination - A headline concert significantly increases the festival's marketing reach and visitor attraction potential. • Goal E-1: Support local business development - Increased festival attendance directly benefits local restaurants, hotels, and retail establishments.
ATTACHMENTS:
1. SoundSkilz Artist Analysis and Pricing Tiers
Cathederal City, CA
Artist Pricing Genre Spotify Insta FB TT Awards / Notes $750k-$1m
Red Clay Strays Country Rock 8.6M 1.8M 1.2M 1.3M
Emerging act of the year 2024 Americana Honors, New or
Group of the Year 2025 ACM
Tim McGraw Country 10.1M 3.8M 8.9M 3.6M
3 Grammy's, 21 ACM wins, 14 CMA wins, 10 AMA wins, 3
Peoples Choice Awards. 1 Billboards Music Awards
Weezer Rock 17.3M 1.1M 3.2M 1.1M 1 Grammy win, 1 VMA win Alanis Morrissette Rock 9.5M 1.4M 4M 199.5K
7 Grammy Wins, 2 AMA wins, 3 MTV wins, 1 ASCAP Pop Music Award wins,
Nickelback Rock 24M 1.6M 16M 1.4M 2 AMA wins, 3 Billboards wins, 1 peoples choice awards win The Jonas Bros Pop 19.1M 7M 13M 7.9M 2 AMA wins, 4 Billboard wins, 2 ASCAP Pop Music Award wins $250-$350k
Nelly Hip-Hop 24.3M 4M N/A 446.5K
3 Grammy wins, 9 Billboard Music wins, 4 AMA wins, 1 BET Awards win
Earth Wind & Fire Rock 24.3M 431K 2.6M 159.8K
7 Grammy wins, 4 AMA wins, BET Lifetime Achievement Award, Soul Train Legend Award, ASCAP Rhythm and Soul Heritage Award, Kennedy Center Honors, Congressional Horizon Award, Rock and Roll HOF, NAACP Image Award HOF,
Pentatonix Pop 2.8M 3.6M 5.1M 5.2M 3 Grammy wins
Shabbozey Hip-Hop 27.1M 1.3M 105K 1.2M Billboard Music Awards Win 2024 Dustin Lynch Country 5.7M 1.2M 1.9M 488.5K BMI country awards Win Warren Zeiders Country 7.5M 1.7M 618K 3.1M 1 CMT awards win Good Charlotte Rock 5.6M 307K 3.1M 261.8K 2003 MTV VMA Viewer's Choice Award Winner $100-$150k
Billy Currington Country 6.6M 241k 2.3M 23.7k None
Marcus King Rock 3.2M 728k 321k 417.2k None
Styx Rock 5M 131k 1.8M 23.6k None
KC & The Sunshine Band Funk 7.4M 143k 257k 103.6k 1 AMA win Bush Rock 4.7M 279k 1M 55.3k None
Dwight Yoakam Country 2.3M 303k 1.4M N/A 2 Grammy wins, 1 ACM win, $50k-$70k
Gavin DeGraw Country 2.8M 318k 705k 353.6k
Neal McCoy Country 955.7k 57.2k 894k 51.7k
TX Country Music HOF, CMT Video of the Year, Multiple
humanitarian awards
Better Than Ezra Rock 959.2k 27.2k 123k 561 None
Bowling For Soup Rock 3.6M 128k 701k 20.5k None
Tonic Rock 2.1M 12.1k 52k 74 None
Tracy Byrd Country 2.4M 25.4k 205k 1070 1 ACM win
1