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AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
KIMLEY-HORN AND ASSOCIATES, INC.
This Agreement for Professional Services (“Agreement”) is entered into as of August 22, 2026 (“Effective Date”) by and between the City of Cathedral City , a municipal corporation ”), organized under the laws of the State of California, with its principal place of business at 68700 Avenida Lalo Guerrero, Cathedral City, California 92234 (“City”) and Kimley-Horn and Associates, Inc. , a California Corporation (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, b y. request for qualifications / proposals the performance of the engineering support services defined and described particularly in Section 2 of this Agreement.
B. Consultant, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Consultant was selected by the City on the basis of Consultant’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required and Consultant represents that it is experienced in providing the engineering support services to public clients, is licensed in the State of California, and is familiar with the plans of the City.
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 c ontained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
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SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 20 "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. Consultant agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part o f this Agreement by this reference.
(b) Schedule of Performance . The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Consultant shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Consultant to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Consultant shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 2 6 “Administration and Implementation” or Section 2 8 “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. 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 described in Exhibit “B” “Compensation”. 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 lum p sum compensation will not be effective until authorized by Agreement amendment and approved by 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 set forth in Exhibit “A” “Scope of Services”, City shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 20, “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 - 3 -
issued by City’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 City’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 that include any equipment purchased under the provisions of Article XI Equipment Purchase of Exhibit “D” “Federal Provisions” . The final invoice must be submitted within sixty (60) c alendar days after completion of Consultant’s work unless a later date is approved by the City. Invoices shall be emailed to City’s Contract Administrator at the following address:
[email protected].
(e) The total amount payable by City shall not exceed $400,576.12.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Consultant’s work under this Agreement, either during performance or when completed. City shall reject or finally accept the Consultant’s work within sixty (60) days after being submitted to City. The city shall reject work by a timely written explanation . . 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 Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.” SECTION 6. OWNERSHIP OF MATERIALS; EXCEPTIONS; WARRANTY. (a) Documents and Data. All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement (“Materials”) shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Consultant. Upon completion, expiration or termination of this Agreement, Consultant shall turn over to City all such Materials.
(b) If and to the extent that City utilizes for any purpose not related to this Agreement any Materials prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement, Consultant’s guarantees and warranties in Section 9 “Standard of Performance ; Familiarity With Work ” of this Agreement shall not extend to such use of the Materials. (c) Consultant warrants that all Materials it drafts a nd completes pursuant to this Agreement constitutes original - 4 -
work. Specifically, Consultant understands and agrees that use of artificial intelligence (AI) tools including, without limitation, ChatGPT, Microsoft’s Bing Chat, Google’s Bard, and Meta’s LLaMA (Large Language Model Meta AI), in the performance of this Agreement does not constitute an original work, i.e., submitting Materials generated by such AI tools to City and representing it as Consultant’s original work constitutes a material breach of th is Agreement, constitutes a false claim, and may also violate applicable intellectual property rights law including without limitation, United States Copyright Law. Accordingly, and notwithstanding any other provision of this Agreement as to ownership, City specifically rejects ownership of such Materials. Consultant is required to indemnify and defend City to the fullest extent allowed by applicable law should it violate this Section.
SECTION 7. CONSULTANT'S BOOKS AND RECORDS.
(a) Consultant shall maintain any and all documents and records demonstrating or relating to Consultant’s performance of the Services. Consultant shall maintain any and all 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. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed s o as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement.
Any and all such documents or records shall be maintained for three (3) years from the date of execution of this 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. (c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be los t 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 8. INDEPENDENT CONTRACTOR.
(a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of - 5 -
or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control.
Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City.
(c) Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK. (a) Consultant represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In me eting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Consultant under this Agreement, and shall use such skill, prudence, and diligence as other members of Consultant’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance crit eria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Consultant’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general. (b) Consultant warrants that (1) it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully consi dered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement.
(c) Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Consultant shall at all times enforce strict discipline and good order among its employee s. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Services, or any employee who fails or refuses to perform the Services in a manner acceptable to the - 6 -
City, shall be promptly removed from the Services to be performed by the Consultant and shall not be re-employed on the Services.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Consultant shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement and such licenses, permits and approvals shall be maintained throughout the Term of this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.
SECTION 11. PREVAILING WAGE LAWS.
Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. It is the understanding of City and Consultant that California prevailing wage laws may not apply to this Agree ment because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work. Consultant shall defend, indemnify, and hold City, its elected officials, officers, employees, volunteers and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
SECTION 12. NONDISCRIMINATION.
Consultant shall not discriminate, in any way, in the employment of persons to perform the Services in violation of any federal or state law prohibiting discrimination in employment, i ncluding based on the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, of any person, except as provided under California Government Code section 12940.
SECTION 13. UNAUTHORIZED ALIENS.
Consultant 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. - 7 -
Should Consultant so employ such unauthorized aliens for the performance of the Services, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant 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 14. CONFLICTS OF INTEREST.
(a) Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of the Services. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City may determine that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. If such a determination is made, Consultant shall file the subject Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request. (c) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involved in the performance of non -related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (d) City understands and acknowledges that Consultant will, perform non - related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All 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. Consultant shall not use City’s name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. - 8 -
(b) Consultant, its officers, employees, agents o r 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 reim bursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrog atories, 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.
SECTION 16. INDEMNIFICATION.
(a) Indemnification by Consultant. As provided under Civil Code Section 2782.8, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees , volunteers and agents (“Indemnified Parties”) from and against any and all claims. actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") to the extent same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its officers, agents, volunteers, employees or sub - Consultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement . In the event Claims are found by the trier of fact to have been caused by the joint or concurre nt negligence of the City , its contractors and other professionals, and Consultant, 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, Consultant shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to Consultant’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 - 9 -
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 . Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub-Consultant, subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this Agreement or this section. (c) City's Negligence. The provisions of this section do not apply to Claims occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 17. INSURANCE.
Consultant agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All 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. Consultant agrees to provide City with copies of required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of Consultant are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Consultant under this Agreement. In recognition of that interest, Consultant shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Consultant’s duties or obligations under this Agreement witho ut 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 20 “Termination of Agreement.” City acknowledges, however, that Consultant, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 19. CONTINUITY OF PERSONNEL.
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the - 10 -
Services. Consultant shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to perform the Services prior to and during any such performance. If City does not agree to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.
SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, a t any time by giving thirty (30) days written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress. (b) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice. (c) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which i s in Consultant’s possession shall be returned to City. Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 4 “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 4 “Compensation and Method of Payment” of this Agreement.
SECTION 21. DEFAULT.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant , however, the timeframe may also be shortened if the default results in a safety issue or imminent threat t o City employees or the public in the sole discretion of the City . During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Consultant shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Consultant. Such causes include, but are not limited to, acts of God, acts of the - 11 -
public enemy, ac ts 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 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Consultant in every reasonable way to facilitate, wit hout undue delay, the Services to be performed under this Agreement.
SECTION 24. 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: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Email: [email protected]
To Consultant: Kimley-Horn and Associates, Inc.
Attn : Jason Melchor, PE
36951 Cook Street #103
Palm Desert, CA 92211
Email : [email protected]
Notice may also be sent by email. 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. If sent by email, notice shall be deemed effective on the date sent. Notice sent by email must be confirmed within forty -eight (48) hours by letter ma iled or delivered. Other forms of electronic transmission such as text messages and instant messages are not acceptable manners of notice required hereunder.
SECTION 25. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder. - 12 -
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the Cit y 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 2 8 “Amendment” and the City Manager’s contracting authority under the Cathedral City Municipal Code and its adopted policies and procedures.
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Cathedral City Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 29. 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 Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. 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 31. 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. - 13 -
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhib its "A" through " D", 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 Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 33. 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 34. 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 35. FEDERAL FUNDS.
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 36. DATA PROTECTION.
(a) Consultant shall protect, using the most secure means and technology that is commercially available, C ity-provided data or consumer -provided data acquired in the course and scope of this Agreement, including but not limited to customer lists and customer credit card or consumer data, (collecti vely, the “City Data”). Consultant shall notify C ity in writing as soon as reasonably feasible, and in any event within twenty-four (24) hours, of Consultant’s discovery or reasonable belief of any unauthorized access of City Data (a “Data Breach”), or of any incident affecting, or potentially affecting City Data related to cyber security (a “Security Incident”), including, but not limited to, denial of service attack, and system outage, instability or degradation due to computer malware or virus. Consultant shall begin remediation immediately.
Consultant shall provide daily updates, or more frequently if required by C ity, regarding - 14 -
findings and actions performed by Consultant until the Data Breach or Security Incident has been effectively resolved to C ity’s satisfaction. Consultant shall conduct a n investigation of the Data Breach or Security Incident and shall share the report of the investigation with C ity. At C ity’s sole discretion, C ity and its authorized agents shall have the right to lead or participat e in the investigation. Consultant shall cooperate fully with City, its agents and law enforcement.
(b) If City is subject to liability for any Data Breach or Security Incident, then Consultant shall fully indemnify and hold harmless C ity and defend against any resulting actions.
SECTION 37. SAM.GOV CHECK.
This Agreement is governed by 2 CFR 200 Appendix II (H) of the Contract Provisions for Non -Federal Contracts Under Federal Awards: “Debarment and Suspension (Executive Orders 12549 and 12689) —A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.”
SECTION 38. 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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF CATHEDRAL CITY Kimley-Horn and Associates, Inc. __________________________ ___________________________
Andrew Firestine By: Jason Melchor, PE
City Manager Its: QA/QC Manager
ATTEST:
___________________________
Christina Burton
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: CONSULTANT’S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S
BUSINESS ENTITY.
A-1
EXHIBIT "A"
SCOPE OF SERVICES
City of Cathedral City • RSCACOAC016773.2026
12 Safe Streets for All (SS4A) (City Project No. C06516)
SCOPE OF WORK
Task 1 — Project Management/Administration
Kimley-Horn will provide project management for this Project, which is subject to FHWA SS4A requirements and 2 CFR Part 200 Uniform Guidance.
1.1 Kick-Off Meeting:
The team will prepare the agenda and lead a kick-off meeting with City staff and will prepare meeting notes.
1.2 Ongoing Coordination:
Kimley-Horn will provide coordination with City staff and technical stakeholders. The team will provide updates to the stakeholder committee, timed in advance of stakeholder meetings.
1.3 Progress Meetings:
Kimley-Horn will conduct up to 18 progress meetings. Assuming a 14-month schedule, this provides the opportunity to have monthly meetings and then more frequent meetings when there are periods of high-activity.
1.4 Schedule and Milestone Tracking:
Kimley-Horn will prepare a project schedule which identifies milestones and deliverables and will update when necessary.
The project anticipates a 14-month schedule, but Kimley-Horn will provide contingency for the schedule to extend up to 18 months if requested by the City.
1.5 Action Tracker
Kimley-Horn will develop a project action tracker which will be updated throughout the project to document key items and milestones.
1.6 Progress Reports
Kimley-Horn will prepare concise monthly progress reports and will submit to the City with monthly invoices to be compliant with FHWA SS4A Requirements and 2 CFR Part 200 Guidelines.
1.7 Stakeholder Committee:
Kimley-Horn / Burke Rix (BRC) will identify committee members with input from City staff, establish a single stakeholder committee serving all three plans, maintain a contact list, and draft a committee introduction email.
1.8 Notification Campaigns:
In advance of each stakeholder meeting (identified under Tasks 3–5), the team will conduct a notification campaign in coordination with the City’s Communications Department. The notifications will be provided in English / Spanish through e-mail distribution and a social media toolkit for posting on City and stakeholder social media accounts. For larger events, the team will utilize media advertisements, which will be limited to the advertisement budget outlined in the Cost Proposal. For each stakeholder meeting and walk audit (identified under Task 3-5), we will have at least one Spanish speaking team member to provide in person interpretation services.
Deliverable(s):
⬔ Kick-off meeting agenda
⬔ Progress meetings (up to 18)
⬔ Project schedule
⬔ Project action item tracker
⬔ Progress reports
⬔ Formation of a stakeholder committee, contact list,
and e-mail invitation
⬔ Notification campaigns in advance of stakeholder
meetings (6 total outlined in Tasks 3-5)
City of Cathedral City • RSCACOAC016773.2026
13 Safe Streets for All (SS4A) (City Project No. C06516) Task 2 — Develop Plan Goals and Objectives
Kimley-Horn will work with City staff, stakeholders, and the community to establish the vision, goals, objectives, and performance measures shared across the CSAP , ADA Transition Plan, and SRTS Plan. We will review existing plans, policies, studies, and safety initiatives, including the 2026 LRSP , the 2023 Active Transportation Plan, the 2025 Engineering and Traffic Survey, and the 2015 ADA accessibility reports.
The team will identify and engage key stakeholders, including City departments, the Cathedral City Police Department, school districts, transit providers, advocacy groups, community-based organizations, elected officials, and residents, and will develop and maintain a stakeholder database identifying key City contacts, stakeholder groups, and neighborhood organizations to inform of workshops and project updates. Along with developing goals and objectives supporting the City’s long-term vision of eliminating roadway fatalities and serious injuries, Kimley-Horn will work with the City to establish performance measures and evaluation criteria to support implementation and future updates.
Deliverable(s):
⬔ Literature review summary and data inventory matrix
⬔ Stakeholder database
⬔ Goals, objectives, and performance-measure
technical memorandum
Task 3 — Comprehensive Safety Action Plan
Kimley-Horn will prepare the CSAP consistent with FHWA SS4A guidance and the Safe System Approach, building on — not duplicating — the analysis in the City’s June 2026 LRSP to perform the following:
⬔ Use the LRSP’s collision analysis (464 injury collisions, 2020–2024) as the primary technical foundation, updating only as necessary for SS4A compliance.
⬔ Apply a Safe System Approach to identify systemic safety risks and citywide priorities for all roadway users, with emphasis on the corridors and intersections already identified in the LRSP (Date Palm Drive, Ramon Road, East Palm Canyon Drive, and the Cathedral Canyon Drive intersections). ⬔ Refine and prioritize a High Injury Network incorporating equity, exposure, and vulnerable-road-user considerations, consistent with the City’s disadvantaged-community designation. ⬔ Develop a coordinated implementation framework of policies, programs, and infrastructure strategies, and identify and prioritize evidence-based countermeasures and innovative safety technologies. ⬔ Develop implementation phasing, planning-level cost estimates, and funding strategies, building on the LRSP’s 18 identified spot-improvement locations.
⬔ Establish performance measures and a monitoring framework to track progress toward reducing fatal and serious- injury crashes.
⬔ Coordinate CSAP recommendations with the ADA Transition Plan and SRTS Plan to develop one integrated safety strategy.
The team will coordinate two in-person stakeholder workshops for the CSAP , assuming one round of notification before each meeting and a City-provided venue space at no rental cost. Each workshop will be supported by up to three project boards and one project presentation, prepared by Kimley-Horn. A summary will be provided following each workshop.
Deliverable(s):
⬔ Updated High Injury Network and equity overlay maps
⬔ Countermeasure toolbox and prioritized project list
with implementation phasing and cost estimates
⬔ Administrative draft, draft, and final Comprehensive
Safety Action Plan
⬔ Two stakeholder workshop summaries
Task 4 — ADA Transition Plan
Kimley-Horn will prepare an ADA Transition Plan evaluating accessibility within the public right-of-way, public facilities, and parks, using the City’s 2015 accessibility reports as baseline reference, updating, and supplementing them with current field assessments and GIS-based data collection. Kimley-Horn will:
⬔ Conduct a field review of the public right-of-way, public facilities, and parks to establish a current inventory of accessibility barriers that do not meet current ADA standards. This will include the evaluation of up to ten building and park sites and up to 35 miles of sidewalk, curb ramps, traffic signal push buttons, transit stops and crosswalks.
Kimley Horn has scoped additional data collection under task O3. ⬔ Prepare a structured ADA Accessibility Analysis, classifying barriers and identifying system-wide accessibility gaps for the area that is covered in the field review.
City of Cathedral City • RSCACOAC016773.2026
14 Safe Streets for All (SS4A) (City Project No. C06516) ⬔ Develop a phased implementation framework and planning-level cost estimates for barrier removal, prioritized using the same equity criteria applied in the CSAP .
The team will coordinate two in-person stakeholder workshops for the ADA Transition Plan, assuming one round of notification before each meeting and City-provided venue space at no rental cost. Each workshop will be supported by up to three project boards and one project presentation, prepared by Kimley-Horn. A summary will be provided following each workshop.
Deliverable(s):
⬔ Updated ADA barrier inventory and GIS database
⬔ ADA Accessibility Analysis technical memorandum
⬔ Administrative draft, draft, and final ADA Transition Plan ⬔ Two stakeholder workshop summaries
Task 5 — Safe Routes to School Plan
Kimley-Horn will prepare a Safe Routes to School Plan evaluating pedestrian and bicycle access, traffic safety conditions, and neighborhood connectivity at each of the City’s nine public schools, coordinated with school districts and other stakeholders.
Walk Audits:
Conduct school walk audits at all nine Cathedral City public schools: Cathedral City High School, Mt. San Jacinto High School, James Workman Middle School, Nellie N. Coffman Middle School, Agua Caliente Elementary School, Cathedral City Elementary School, Landau Elementary School, Rio Vista Elementary School, and Sunny Sands Elementary School.
Kimley-Horn will lead each audit and will provide a summary following each audit.
Parent Surveys:
Kimley-Horn will conduct up to two parent surveys, provided in English and Spanish.
Recommendations:
Kimley-Horn will develop recommended safety improvements and strategies consistent with SRTS best practices and the Safe System Approach, including prioritized improvements, implementation phasing, and planning-level cost estimates, coordinated with the CSAP and ADA Transition Plan.
Stakeholder Workshops:
The team will coordinate two in-person stakeholder workshops for the SRTS Plan, with one round of notification before each meeting and City-provided venue space at no rental cost. Each workshop will be supported by up to three project boards and one project presentation, prepared by Kimley-Horn. A summary will be provided following each workshop.
Deliverable(s):
⬔ School walk audit summaries (eight schools)
⬔ Parent survey results summary (English/Spanish)
⬔ Prioritized SRTS project list with implementation
phasing and cost estimates
⬔ Administrative draft, draft, and final Safe Routes to School Plan
⬔ Two stakeholder workshop summaries
Task 6 — Final Documentation and Adoption Support
Kimley-Horn will prepare administrative draft, draft, and final versions of all three plans, along with executive summaries, presentation materials, GIS data and maps and will support the City through the adoption process.
City Council Meetings:
Kimley-Horn will attend one City Council study session and one City Council adoption meeting. Kimley-Horn will develop the presentation materials for both meetings.
Engagement Summary:
Kimley-Horn / BRC will compile all outreach event summaries from Tasks 3–5 into one consolidated Engagement Summary for submittal to the City.
City of Cathedral City • RSCACOAC016773.2026
15 Safe Streets for All (SS4A) (City Project No. C06516) Deliverable(s):
⬔ Executive summaries and City Council presentation
materials for two meetings
⬔ Consolidated Engagement Summary
⬔ Final, Council-adopted Comprehensive Safety Action
Plan, ADA Transition Plan, and Safe Routes to
School Plan
Optional Tasks (available at the City’s request)
Optional Task 1 – PublicCoordinate
Kimley-Horn will host for the duration of the project (assumes up to 18 months) a project interactive map where the community can post comments on a citywide map.
Optional Task 2 – StoryMap
Kimley-Horn will develop a StoryMap website. The StoryMap will include photos and project graphics and will be updated at key project milestones. Kimley-Horn will be responsible for hosting the website for the project duration (assumes up to 18 months).
Optional Task 3 – Pop-Up Events
Kimley-Horn and BRC can attend up to five community pop-up events — for example, the Cathedral City Hot Air Balloon Festival, Cathedral City LGBT+ Days, and the Taste of Jalisco Festival — with one Spanish-speaking team member present at each and will provide a summary of attendees, photos, and outcomes after each event.
Optional Task 4 – Additional Virtual Stakeholder Meetings The team can organize three additional virtual stakeholder meetings, one for each plan component (CSAP , ADA, SRTS).
Kimley-Horn / BRC will prepare presentation materials, provide notification to the community, and lead the presentation.
Optional Task 5 – Additional ADA Data Collection
Conduct additional field review of the public right-of-way, public facilities, and parks to establish a current inventory of accessibility barriers that do not meet current ADA standards. This will include the evaluation of up to five building and park sites and up to 15 miles of additional sidewalk, curb ramps, traffic signal push buttons, transit stops and crosswalks.
PROJECT SCHEDULE
Phase Approximate Timeframe Key Milestones
Project Initiation and Goal
Setting (Tasks 1–2) Months 1–3 Kick-off meeting; stakeholder committee established; goals and objectives memorandum
Existing Conditions, Field
Surveys and Data Analysis Months 2–7 LRSP data refinement; ADA field survey; school walk audits (Round 1); parent survey (Round 1)
Stakeholder Workshops —
Round 1 (Tasks 3–5) Months 4–8 First CSAP , ADA, and SRTS stakeholder workshops Plan Development and
Countermeasure Prioritization Months 8–12 High Injury Network refinement; ADA barrier prioritization; SRTS project list; cost estimates
Stakeholder Workshops —
Round 2 and Public Engagement Months 12–13 Second CSAP , ADA, and SRTS stakeholder workshops; parent survey (Round 2)
Administrative Draft and
Draft Plans Months 13–14 Administrative draft and draft CSAP , ADA Transition Plan, and SRTS Plan to City for review
Final Plans, Council Adoption
and Public Availability Months 14–15 City Council study session; final plan revisions; Council adoption; plans publicly available by October 2028
Contingency Month 15–24
Accelerated schedule proposed to meet future grant
cycle opportunities and additional implementation
support as needed
B-1
EXHIBIT "B"
COMPENSATION
196.75% Overhead% Name
Kameron
Qureshi
Jason
Melchor
Darryl
dePencier
195.87% Overhead% w/o FCCM Category/Title Project
Manager
QC/QA
Manager
Principal-in-
Charge
10% Fee% Direct Rate $72.90 $104.18 $84.28 $98.10 $82.87 $67.12 $56.77 $51.21 $48.80 $45.20 Billing Rate $237.90 $339.98 $275.04 $320.14 $270.44 $219.04 $185.26 $167.12 $159.25 $147.50 Task 1 60 4 4 20 20 80 16 20 25 10 259 $ 57,831.35 Task 2 20 4 4 10 60 80 100 278 $ 55,094.30
Task 3 10 2 4 4 20 50 80 170 $ 30,240.93
Task 4 10 5 4 20 25 15 40 10 129 $ 27,002.33
Task 5 16 2 4 4 30 35 45 80 216 $ 40,182.79
Task 6 20 4 10 20 10 40 60 80 20 264 $ 54,172.01
136 21 30 58 50 235 226 335 185 40 1,316
$32,354.36 $7,139.54 $8,251.10 $18,567.92 $13,521.77 $51,473.79 $41,869.10 $55,984.25 $29,461.70 $5,900.17 $ 264,523.71 $ 136,052.41
$ 1,000.00
$ 1,000.00
$ 50,000.00
$ 30,000.00
$ 54,052.41
$ 400,576.12
Task O
2 2 20 24 $ 4,150.94
8 8 20 20 40 96 $ 18,837.35
20 10 30 10 70 $ 15,886.09
10 15 10 20 55 $ 11,630.49
38 33 52 42 80 245
$9,040.19 $8,924.37 $11,389.94 $7,780.98 $13,369.37 $ 50,504.86 $ 56,414.99
$ 17,414.99
$ 4,000.00
$ 25,000.00
$ 10,000.00
$ 106,919.85
TOTAL COST:
Travel/Mileage
Optional Tasks Subtotal Labor:
OPTIONAL TASKS TOTAL HOURS
Additional Stakeholder Outreach
Additional ADA Data Collection
Optional Tasks
Optional Tasks (Available at the City's Request)
StoryMap
Pop-Up Events
Partner
DaxBot
Burke Rix Communications, LLC
Outside Printing/Courier Services
TOTAL HOURS
Subtotal Labor:
Other Direct Costs
Safe Routes to School Plan
Final Documentation and Adoption Support
ADA Transition Plan
City of Cathedral City
Comprehensive Safety Action Plan, ADA Transition Plan, and Safe Routes to School Update Kimley-Horn and Associates, Inc.
Project
Support
TOTAL
HOURS
TOTAL
COST
Sr.
Professional I Professional II Professional I Analyst II Analyst I Project Management/Administration
Sr.
Professional II
Develop Plan Goals and Objectives
Comprehensive Safety Action Plan
Burke Rix Communications, LLC
Other Direct Costs
OPTIONAL TASKS TOTAL COST:
DaxBot
Partner
Kimley-Horn Proprietary Software (Public Coordinate)
Name Brian Rix Josh Zipperman Geena Vescial
46.61% Overhead % Category/Title
Chief
Strategist Outreach Manager Outreach
Specialist
10% Fee% Direct Rate $114.94 $91.43 $54.86
Billing Rate $185.36 $147.45 $88.47
Task 1 14 55 20 89 $ 12,474.33
1.1 2 2 4 $ 665.63
1.2 5 18 10 33 $ 4,465.66
1.3 2 10 12 $ 1,845.23
1.7 5 25 10 40 $ 5,497.81
Task 2 20 10 30 $ 3,833.73
2.1 20 10 30 $ 3,833.73
Task 3 2 30 15 47 $ 6,121.33
3.1 2 30 15 47 $ 6,121.33
Task 4 2 30 15 47 $ 6,121.33
4.1 2 30 15 47 $ 6,121.33
Task 5 7 60 45 112 $ 14,125.86
5.1 2 30 15 47 $ 6,121.33
5.2 3 20 20 43 $ 5,274.56
5.3 2 10 10 22 $ 2,729.96
Task 6 5 20 25 $ 3,875.83
6.1 2 6 8 $ 1,255.43
6.2 2 6 8 $ 1,255.43
6.3 1 8 9 $ 1,364.97
30 215 105 350
$5,560.95 $31,701.77 $9,289.69 $ 46,552.41
$ 7,500.00
$ 3,000.00
$ 1,500.00
$ 3,000.00
$ 54,052.41
Task O 6 70 45 121 $ 15,414.99
O.1 3 30 15 48 $ 6,306.70
O.2 3 40 30 73 $ 9,108.30
6 70 45 121
$1,112.19 $10,321.51 $3,981.30 $ 15,414.99
$ 2,000.00
$ 2,000.00
$ 17,414.99
Progress Meetings
City of Cathedral City
Comprehensive Safety Action Plan, ADA Transition Plan, and Safe Routes to School Update Burke Rix Communications, LLC
Total
Hours
Total
Costs
Project Management/Administration
Kick-Off Meeting
Facilitate Ongoing Coordination w/ Stakeholders
Establish Committee to Perform Outreach
Develop Plan Goals and Objectives
Identify & Engage Stakeholders / Maintain Database
Comprehensive Safety Action Plan
Two Stakeholder Meetings + Brief Summaries
Support Parent Surveys
ADA Transition Plan
Two Stakeholder Meetings + Brief Summaries
Safe Routes to School Plan
Two Stakeholder Meetings + Brief Summaries
Support School Walk Audits
Final Documentation and Adoption Support
City Council Study Session
City Council Meeting
Engagement Summary
TOTAL HOURS
Subtotal Labor:
Other Direct Costs
News Outlet Advertisements for Meetings (2)
Social Media Advertisements for Meetings
Community Meeting Materials
TOTAL COST:
Optional Tasks
Optional Tasks
Virtual Meetings
Pop-Up Events
OPTIONAL TASKS TOTAL COST:
OPTIONAL TASKS TOTAL HOURS
Optional Tasks Subtotal Labor:
Other Direct Costs
Community Meeting Materials
Personnel Category Direct Rate
Overhead
196.75%
(contains 0.88%
FCCM)
Fee*
10% Billing Rate
Kameron Qureshi, Project Manager $72.90 $143.43 $21.57 $237.90 Jason Melchor, QC/QA Manager $104.18 $204.97 $30.82 $339.98 Darryl dePencier, Principal-in-Charge $84.28 $165.82 $24.94 $275.04 Analyst I $48.80 $96.01 $14.44 $159.25
Analyst II $51.21 $100.76 $15.15 $167.12
Professional I $56.77 $111.69 $16.80 $185.26
Professional II $67.12 $132.06 $19.86 $219.04
Sr. Professional I $82.87 $163.05 $24.52 $270.44
Sr. Professional II $98.10 $193.01 $29.02 $320.14
Sr. Professional III $119.24 $234.60 $35.28 $389.12
Sr. Professional IV $130.36 $256.48 $38.57 $425.41
Technical Support $33.66 $66.23 $9.96 $109.85
Project Support $45.20 $88.93 $13.37 $147.50
* Fee is not charged to the FCCM portion of Kimley-Horn's Overhead Rate Rates are effective through June 30, 2027. Subject to annual escalation thereafter.
Other Direct Costs: Outside Printing/Reproduction, Delivery Services/USPS, Misc. Field Equipment/Supplies, and Travel Expenses will be billed at actual cost. Mileage will be billed at the Federal Rate.
Hourly Labor Rate Schedule
Inspector General California Department of Transportation Certification of Indirect Costs and Financial Management System (Note: If a Safe Harbor Indirect Cost Rate is approved, this form is not required) Consultant’s Full Legal Name: Important: Consultant means the individual or consultant providing engineering and design related services as a party of a contract with a recipient or sub-recipient of Federal assistance. Therefore, the Indirect Cost Rate(s) shall not be combined with its parent company or subsidiaries. Indirect Cost Rate (ICR): Combined Rate: Or Facilities Capital Cost of Money (if applicable): Fiscal Period:* * Fiscal period is annual one year applicable accounting period that the ICR was developed (not the contract period). The ICR is based on theto the best of my knowledge and belief that: • All costs included in the cost proposal to establish the ICR(s) are allowable in accordance with the costprinciples of the Federal Acquisition Regulation (FAR) 48, Code of Federal Regulations(CFR), Chapter 1, Part 31 (48 CFR Part 31)• The cost proposal does not include any costs which are expressly unallowable under the cost principles of 48CFR Part 31• The accounting treatment and billing of prevailing wage delta costs are consistent with our prevailing wagepolicy as either direct labor, indirect costs, or other direct costs on all federally-funded A&E ConsultantContracts.•I am providing the required and applicable documents as instructed on the Financial Document Review Request form. Financial Management System: records, and internal control adequate to demonstrate that costs claimed have been incurred, appropriately accounted for, are allocable to the contract, and comply with the federal requirements as set forth in Title 23 United States Code (U.S.C.) Section 112(b)(2); 48 CFR Part 31.201-2(d); 23 CFR, Chapter 1, Part 172.11(a)(2); and all applicable state and federal rules and regulations. • Account numbers identifying allowable direct, indirect, and unallowable cost accounts;• Ability to accumulate and segregate allowable direct, indirect, and unallowable costs into separate costaccounts;1 Kimley-Horn and Associates, Inc.195.87 175.190.8801/01/2025 - 12/31/2025 • Ability to accumulate and segregate allowable direct costs by project, contract and type of cost; •
• Ability to account and record costs consistently and to ensure costs billed are in compliance with FAR; • Ability to ensure and demonstrate costs billed reconcile to general ledgers and job costing system; and • Ability to ensure costs are in compliance with contract terms and federal and state requirement Cost Reimbursements on Contracts:
I also understand that failure to comply with 48 CFR Part 16.301-3 or knowingly charge unallowable costs to Federal-Aid Highway Program (FAHP) contracts may result in possible penalties and sanctions as provided by the following:
• Sanctions and Penalties -23 CFR Part 172.11(c)(4)
• False Claims Act - Title 31 U.S.C. Sections 3729-3733 • Statements or entries generally -Title 18 U.S.C. Section 1001 • Major Fraud Act - Title 18 U.S.C. Section 1031
All A&E Contract Information:
• Total participation amount ___________________ on all State and FAHP contracts for Architectural & • The number of states in which the consultant does business is • Years of consultant’s experience with 48 CFR Part 31 is •
Cognizant ICR Audit Local Govt ICR Audit
Caltrans ICR Audit
CPA ICR Audit Federal Govt ICR Audit
I, the undersigned, certify all of the above to the best of my knowledge and belief and that I have reviewed the ICR Schedule to determine that any costs which are expressly unallowable under the Federal cost principles have been removed and comply with Title 23 U.S.C. Section 112(b)(2), 48 CFR Part 31, 23 CFR Part 172, and all applicable state and federal rules and regulations. I also certify that I understand that all documentation of compliance must be retained by the consultant. I hereby acknowledge that costs that are noncompliant with the federal and state requirements are not eligible for reimbursement and must be returned to Caltrans.
Name ** Title**:
Signature: Date:
Phone**: Email**:
establish the indirect cost rate.
Note: Both prime and subconsultants as parties of a contract must complete their own forms. Caltrans will not Audits and Investigations.
2 406,420,412.00
50 25+
Tammy Flanagan Chief Financial Officer
[email protected](919) 677-2016
05/27/2026
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California Department of Transportation
Certification of Indirect Costs and Financial Management System (Note: If a Safe Harbor Indirect Cost Rate is approved, this form is not required) Consultant’s Full Legal Name:
Important: Consultant means the individual or consultant providing engineering and design related services as a party of a contract with a recipient or sub-recipient of Federal assistance. Therefore, the Indirect Cost Rate(s) shall not be combined with its parent company or subsidiaries.
Indirect Cost Rate (ICR):
Combined Rate: Or
+RPH2ႈFH5DWH DQG)LHOG2ႈFH5DWH
LIDSSOLFDEOH
Facilities Capital Cost of Money (if applicable):
Fiscal Period:*
* Fiscal period is annual one year applicable accounting period that the ICR was developed (not the contract period). The ICR is based on the FRQVXOWDQW¶VRQH\HDUDSSOLFDEOHDFFRXQWLQJSHULRGIRUZKLFKILQDQFLDOVWDWHPHQWVDUHUHJXODUO\SUHSDUHGE\WKHFRQVXOWDQW ,KDYHUHYLHZHGWKHSURSRVDOWRHVWDEOLVKDQ,&5
V
IRUWKHILVFDOSHULRGDVVSHFLILHGDERYHDQGKDYHGHWHUPLQHG
to the best of my knowledge and belief that:
• All costs included in the cost proposal to establish the ICR(s) are allowable in accordance with the cost principles of the Federal Acquisition Regulation (FAR) 48, Code of Federal Regulations (CFR), Chapter 1, Part 31 (48 CFR Part 31)
• The cost proposal does not include any costs which are expressly unallowable under the cost principles of 48 CFR Part 31
• The accounting treatment and billing of prevailing wage delta costs are consistent with our prevailing wage policy as either direct labor, indirect costs, or other direct costs on all federally-funded A&E Consultant Contracts.
• $OONQRZQPDWHULDOWUDQVDFWLRQVRUHYHQWVWKDWKDYHRFFXUUHGVXEVHTXHQWWR\HDUHQGDIIHFWLQJWKHFRQVXOWDQW¶V RZQHUVKLSRUJDQL]DWLRQDQGLQGLUHFWFRVWUDWHVKDYHEHHQGLVFORVHGDVRIWKHGDWHRIWKLVFHUWLILFDWLRQ I am providing the required and applicable documents as instructed on the Financial Document Review Request form.
Financial Management System:
2XUODERUFKDUJLQJMREFRVWLQJDQGDFFRXQWLQJV\VWHPVPHHWWKHVWDQGDUGVIRU¿QDQFLDOUHSRUWLQJDFFRXQWLQJ records, and internal control adequate to demonstrate that costs claimed have been incurred, appropriately accounted for, are allocable to the contract, and comply with the federal requirements as set forth in Title 23
United States Code (U.S.C.) Section 112(b)(2); 48 CFR Part 31.201-2(d); 23 CFR, Chapter 1, Part 172.11(a)(2); and all applicable state and federal rules and regulations. 2XU¿QDQFLDOPDQDJHPHQWV\VWHPKDVWKHIROORZLQJDWWULEXWHV
• Account numbers identifying allowable direct, indirect, and unallowable cost accounts; • Ability to accumulate and segregate allowable direct, indirect, and unallowable costs into separate cost accounts;
1 Burke Rix Communications, LLC
46.61 2025-2026
C-1
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Consultant shall provide and maintain insurance, acceptable to the Cit y, 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 Consultant, its agents, representatives or employees. Consultant 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 Consultant 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.
Consultant shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officials, officers, employees, volunteers, 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 Consultant participating under this Agreement, Consultant is to defend and indemnify the City from such claim. If Consultant has no employees or agents, Consultant shall no t be required to maintain Workers’ Compensation Insurance. However, in the event that Consultant hires employees or agents during the Term of this Agreement, Consultant shall obtain and maintain Workers’ Compensation Insurance in accordance with this section.
C-2
X Professional Liability Insurance: Professional liability insurance appropriate to the Consultant’s profession in an amount not less than one million dollars $1,000,000 per occurrence. This coverage may be written on a “claims made” basis, an d 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 Consultant’s services or the termination of this Agreement. During this additional three (3) year period, Consultant shall annually and upon request of the City submi t 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 Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. 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. Consultant’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, Consultant’s insurance.
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c. Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
d. Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect c overage 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, volunteers, 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 off icers, officials, employees and agents for losses arising from work performed by Consultant.
C. Other Requirements. Consultant 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 Consultant 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. Consultant shall furnish certificates and endorsements from each sub-contractor identical to those Consultant provides.
2. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either the i nsurer 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 Consultant 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 Consultant’s liability hereunder nor to fulfill the indemnif ication provisions and requirements of this Agreement.
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EXHIBIT "D"
FEDERAL FUNDING PROVISIONS
“As used throughout the Exhibit “D”, LOCAL AGENCY shall mean the City of Cathedral City.
ARTICLE I INTRODUCTION
See page 1 of the City’s Professional Services Agreement.
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 III STATEMENT OF WORK
See Section 2 “Scope of Services & Schedules of Performance ” in the City’s Professional Services Agreement.
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on August 22, 2026, 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 22, 2028 , 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.
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
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The requirements of this article are addressed in Section 4, “Compensation and Method of Payment”, of the City’s Professional Services Agreement.
ARTICLE VI TERMINATION
A. The 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. 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
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Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDIT
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOC AL 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, 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
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,
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cost proposal, and ICR sha ll 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 b reach 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 recomm endations 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 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 wor k 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 Standard s), 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 perc ent (200%) - the accepted rate will be eighty - five percent (85%) of the proposed rate.
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c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy -five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA -audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to rev iew 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 IC R 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 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 responsibl e 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 sha ll be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator,
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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 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 a ction 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.
CONSULTANT must 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) , and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
G. Prompt Payment of Withheld Funds to Subconsultants
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 p rovisions shall subject the violating CONSULTANT or
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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 cov ered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of 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 lif e 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 LOCA L 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 requ ires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars
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($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 par t of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off -site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects.
Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations 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.
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2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall pro vide 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 S tandards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (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 par agraph (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
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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
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 por tion 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 n ot 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
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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 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 bu t 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 prev ailing 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
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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 o ne and one-half (1.5) times the basic rate of pay, as provided in §1815.
H. Employment of Apprentices
1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT 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 certif ies 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 ce rtifies 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
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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.
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 perso n 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. Submissio n 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.
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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 exce ed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, C ONSULTANT 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 A ct (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 repres entatives 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.
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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 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.
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, volu ntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY.
Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
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C. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. CONSULTANT or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26).
In accordance with 49 CFR 26.13(b):
CONSULTANT 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 ter mination 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
ARTICLE XIX INSURANCE
The requirements of this article are addressed in Section 17, “Insurance,” and Exhibit “C” of the City’s Professional Services Agreement.
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the pa rties 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, condi tions, 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
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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 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 neg otiations 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
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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
The requirements of this article are addressed in Section 37, “ Safety,” of the City’s Professional Services Agreement.
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
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Government Contracts for federal- aid contracts).
E. LOCAL AGENCY may permit copyrighting reports or other agreement products. 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 fi led 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 thi s AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
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D. CONSULTANT shall not issue any news release or public relations ite m 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 unappealabl e 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
CONSULTANT must 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), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, th e 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.
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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 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 Agree ment 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 FH WA 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
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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 As sistance and Real Property Acquisition Policies Act of 1970, (42
U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38;
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• 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 disproporti onately 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 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).
ARTICLE XXXIII NOTIFICATION
The requirements of this article are addressed in Section 24. “Notices” of the City’s Professional Services Agreement.
ARTICLE XXXIV CONTRACT – NOT USED
ARTICLE XXXV SIGNATURES – NOT USED