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3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of the project is not liable for the penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:
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 but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
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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 certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
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.
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ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS
FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 ITEM 7
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CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
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4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government excluded parties (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 CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, the LOCAL AGENCY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes or work code applicable to the type of work the firm will perform on the contract. Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer. • 60 percent counts if the materials or supplies are purchased from a DBE regular dealer. • Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
The goal for DBE participation for this AGREEMENT is set by Task Order. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
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B. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
C. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible
D. Termination and Substitution of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY. Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form, included in the Bid.
The LOCAL AGENCY authorizes a request to use other forces or sources of materials if CONSULTANT shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
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7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Contract
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The LOCAL AGENCY determines other documented good cause.
CONSULTANT shall notify the original DBE of the intent to use other forces or material sources and provide the reasons and provide the DBE with 5 days to respond to the notice and advise CONSULTANT and the LOCAL AGENCY of the reasons why the use of other forces or sources of materials should not occur.
CONSULTANT’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from CONSULTANT to the DBE regarding the request.
3. Notices from the DBEs to CONSULTANT regarding the request.
If a listed DBE is terminated or substituted, CONSULTANT must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal.
E. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1. Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1 -tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
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Upon work completion, CONSULTANT shall complete Exhibit 17-F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
F. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreement basis. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the AGREEMENT is commensurate with the work it is actually performing, and other relevant factors.
G. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
H. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
I. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier.
The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
J. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
K. After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant shall complete and email the Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to the Agency.
L. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
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ARTICLE XIX INSURANCE
A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than two million dollars ($2,000,000) per occurrence.
B. The Certificate of Insurance will provide:
1. That the insurer will not cancel the insured’s coverage without thirty (30) calendar days prior written notice to LOCAL AGENCY.
2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this AGREEMENT are concerned.
3. That LOCAL AGENCY will not be responsible for any premiums or assessments on the policy.
C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this AGREEMENT. In the event said insurance coverage expires at any time or times during the term of this AGREEMENT, CONSULTANT agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the AGREEMENT, or for a period of not less than one (1) year. New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this AGREEMENT upon occurrence of such event.
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
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C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.
C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by LOCAL AGENCY’s Contract Administrator.
ARTICLE XXII CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXIII DISPUTES
Prior to either party commencing any legal action under this AGREEMENT, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
A. Any dispute, other than audit, concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and Kevin Waugh or City Engineer representative, who may consider written or verbal information submitted by CONSULTANT.
B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT.
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ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.
ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives.
CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code.
CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever.
Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by City.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.
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C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.
Any reuse by City for another project or project location shall be at City’s sole risk.
D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal- aid contracts).
E. LOCAL AGENCY may permit copyrighting reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR A. If claims are filed by LOCAL AGENCY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY.
Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.
C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
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F. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of 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 FROM THE LOCAL AGENCY TO CONSULTANT The LOCAL AGENCY shall make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the LOCAL AGENCY fails to pay promptly, the LOCAL AGENCY shall pay interest to the contractor, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied. Upon receipt of a payment request, the LOCAL AGENCY shall act in accordance with both of the following:
(1) Each payment request shall be reviewed by the LOCAL AGENCY as soon as practicable after receipt for the purpose of determining that the payment request is a proper payment request. (2) Any payment request determined not to be a proper payment request suitable for payment shall be returned to CONSULTANT as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDICES A - E of the TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
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b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA 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:
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i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S.
Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the above- ITEM 7
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mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations(as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non- discrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the recipient pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration ITEM 7
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hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.*
C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns.
APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following non- discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 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);
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• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to 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
All notices hereunder and communications regarding interpretation of the terms of this AGREEMENT and changes thereto, shall be effected by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
CONSULTANT:
,CONSULTANT
LOCAL AGENCY:
City of Ceres
Keving Waugh , Contract Administrator/City Engineer
2220 Magnolia Street,
Ceres CA 95307
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ARTICLE XXXIV CONTRACT
The two parties to this AGREEMENT, who are the before named CONSULTANT and the before named LOCAL AGENCY, hereby agree that this AGREEMENT constitutes the entire AGREEMENT which is made and concluded in duplicate between the two parties. Both of these parties for and in consideration of the payments to be made, conditions mentioned, and work to be performed; each agree to diligently perform in accordance with the terms and conditions of this AGREEMENT as evidenced by the signatures below.
ARTICLE XXXV SIGNATURES
CITY OF CERES ________________________
Attachments:
• Exhibit 10-I
• Exhibit 10-K
• Exhibit 10-O1
• Exhibit 10-O2 (include with each project agreement)
• Exhibit 10-Q
• Exhibit 10-H
Kevin Waugh, City
Engineer
____________________, CONSULTANT
Date: Date:______________________
ITEM 7
ITEM 7
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
J
ames Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: February 13, 2023
TO:
F
ROM:
CO
NTACT:
SUBJECT:
Mayor and City Council
Alex Terrazas, City Manager
Sam Royal, Public Works Director
[email protected], (209) 538-5717
Resolution No. 2023-20, Authorizing the City Manager to Approve a Contract with Don Pedro Pump Company for the Well 22, Well 32, and Well 41 Rehabilitation Project and Authorizing the City Manager to Approve a Budget Amendment to Appropriate Funds
RECOMMENDED COUNCIL ACTION:
S
taff recommends City Council approve a contract with Don Pedro Pump Company (Don Pedro Pump) for the Well 22, Well 32, and Well 41 Rehabilitation Project.
I. BACKGRO UND:
The City of Ceres’ source of drinking water is produced from 13 groundwater wells located throughout the City. The wells have an average depth of approximately 333 feet. Each year in July, Powers Electric performs pump efficiency tests to determine the health of the well, pump, and motor. Low efficiency increases electrical costs and increases wear and tear on equipment because the pump and motor work harder to move the same amount of water.
When pumps are pulled for repair, videos of the well and casing are taken for inspection.
These videos are the only occasion in which staff can physically view the casing, perforations, water level, and bottom of the well. Staff perform s site visits three (3) times per week to visually inspect the sites , as well as record operational data such as flow, pressure, and pump performance. With these sources of information, it was determined that three (3) wells need rehabilitation.
Well 22 - located at 1921 Rockefeller Avenue
This well was drilled in 1984 to a completed depth of 253 feet. In 2009, the pump was removed for well and casing rehabilitation. The reason for this rehabilitation was to determine why the flow had dropped off significantly. The well was also producing sand that had the potential to severely damage the uranium removal equipment. The video log showed 95 – 100 % screen blockage in all four sections of screened area. The video also showed a section of the column piping had broken free and was resting at the bottom of ITEM 8
the well. This broken pipe was removed from the well during the rehabilitation process.
Well 22 casing was scrubbed followed by the application of chemical treatment (acid) to clean and open screened areas. Air burst technology was used in the screened areas to ensure the acid penetrated screened areas and ope ned screens. Following the chemical treatment and the air bust, the casing was scrubbed again. The debris was removed by jetting the well. A follow-up video log of the well was done to verify results. The project was successful, and the well was restored to service.
In June of 2022, the pump failed again and was removed and replaced. A video of the well casing indicated that the well’s screens are still plugged and in need of rehabilitation.
Well 32 - l
ocated at 4209 Blaker Road
This well is equipped with an Arsenic Removal Treatment Plant . The well was drilled in 1989 to a completed depth of 360 feet. In April 2019, water from Well 32 began flowing at a rate significantly less than its designed ability. The water level in the well was lower than the equipment, causing air to be pumped from the well. These conditions will cause water hammer in the distribution system due to air pockets , as well as the nuisance of air entrained in the water causing it to look cloudy. More importantly it fouls the treatment process for the removal of arsenic and manganese potentially causing a violation of the City’s Permit to Operate from the State Water Resources Control Board.
An initial video of the well showed serious plugging of the screens in the well casing.
Rehabilitation and redevelopment of the well was required to re -establish adequate flow for the proper operation of the Arsenic Removal Treatment Plant and to meet the demands of the water system, including fire protection. Don Pedro Pump swabbed and jetted the well to clean the casing in May 2019. The test pump indicated the well production was still inadequate. The well was videoed again, and the screens were found to still be plugged.
The process of scrubbing, jetting, air bursting, and pumping was started again. The final video log and test pump indicated the well was rehabilitated and the pump and column were reinstalled. The programming for the well operation was changed so the flow from the well would remain at 800 gpm, rather than 1,500 gpm to avoid breaking suction and drawing air into the system. For a while, the well returned to almost its full capacity.
Currently, flows from this well have fallen from 800 gallons per minute (gpm) to less than 300 gpm. These low flows negatively impact the performance of the treatment system.
Well 41 – l
ocated at 2701 Riverpark Drive
This well was drilled in 2014 to a completed depth of 370 feet. In 2022, the pump failed, and it was pulled and repaired. After the repairs were made, silt, sand, and air began to be pumped from the well indicating a plugged gravel pack. This well is nearly ten (10) years old and has not been rehabilitated.
The American Water Works Association (AWWA) standards recommends Pump Maintenance and Repairs should be scheduled every ten years. City staff work hard to maintain this schedule by the before mentioned pump efficiency tests, well video inspections, and routine site visits. Rehabilitating these three (3) wells in the winter months will avoid the potential impacts of low system pressure due to low water demands. P ump failure and loss of flow in the heat of the summer when demands are at the peak cause pressures to fall very low. Given the nature of this work and the inability to visually inspect ITEM 8
equipment that is 333 feet below ground, a 10% contingency is included to cover unforeseen costs of needed repairs.
II. RE ASONS FOR RECOMMENDATIO N:
On December 7, 2022 a Request for Proposals was requested from four (4) contractors, Howk Systems, Don Pedro Pump, Road Runner, and Pump Repair Service. Two bids were received and opened on January 13, 2023. Staff has determined that Don Pedro Pump is the lowest and most responsible bid and is recommending the contract be awarded to Don Pedro Pump in the amount of $143,522.13, plus a 10% contingency of $14,352.20, for a total amount of $157,874.33.
While the Surface Water Treatment Plant will provide Ceres with surface water, it is critical to maintain the groundwater wells and expand the well field in the future. Ideally the water system shall always be able to maintain the water supply with groundwater alone because there will be occasions when surface water will be un available due to poor water quality from heavy storms, required maintenance, and staffing shortages that may require the plant to be run intermittently.
III. F
ISCAL IMPACTS :
The total bid from Don Pedro Pump is $1 43,522.13 including a 10% contingency of $14,352.20, for the total amount of $157,874.33 . City Council approved the amount of $75,000.00 in the 2022/2023 for Operations budget for Well Rehabilitation, account number 52735.029900. A budget amendment in the amount of $85,000.00 is necessary bringing the total budget to $160,000.00.
IV. E
XISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN :
This is in accordance to the Infrastructure section of the Strategic Plan to “Ensure the community has adequate, well maintained infrastructure (including water, sewer, streets, traffic signals, parks, sidewalks, facilities) that fosters a quality community and supports a strong economy”.
V. P
OLICY ALTERNATIVES :
Should the Council choose not to proceed with this contract Ceres would be prevented from adhering to the AWWA standards Pump Maintenance and Repairs and would put additional wear and tear on the equipment at Wells 22, 32, and 41.
VI. I
NTERDEPARTMENTAL COORDINATION:
N/A
VII. P UBLIC PARTICIPATION:
N/A
VIII. EN VIRONMENTAL REVIEW :
N/A
ITEM 8
IX. STEPS FOLLOWING APPROVAL:
Upon Council approval, the City Manager will execute the contract and the Finance Director shall make the appropriate accounting entries.
Approved by: __________________________
Alex Terrazas, City Manager
Attachments:
1. Resolution
2. Budget Amendment
3. Bid Summary
4. Agreement
ITEM 8
RESOLUTION NO. 2023-20
AUTHORIZING THE CITY MANAGER TO APPROVE A CONTRACT
WITH DON PEDRO PUMP COMPANY FOR THE WELL 22, WELL 32,
AND WELL 41 REHABILITATION PROJECT AND AUTHORIZING THE
CITY MANAGER TO APPROVE A BUDGET AMENDMENT TO
APPROPRIATE FUNDS
THE CITY COUNCIL
City of Ceres
WHEREAS, the City of Ceres’ source drinking water is produced by 13 groundwater wells with pumps which are recommended for service and maintenance every 10 years by the American Water Works Association; and
WHEREAS, Wells 22, 32, and 41 have all experienced pump failure within the last two (2) years signaling the need for rehabilitation; and
WHEREAS, Well 22 located at 1921 Rockefeller Avenue was further determined to need rehabilitation due to video of the well casing indicating the screens are plugged; and
WHEREAS, Well 32 located at 4209 Blaker Road was further determined to need rehabilitation due to testing indicating the well’s production rate is currently inadequate ; and
WHEREAS, Well 41 is located at 2701 Riverpark Drive and was further determined to need rehabilitation due to testing indicating a plugged gravel pack; and
WHEREAS, staff advertised Requests for Proposals for the project and has determined that of the bids received, Don Pedro Pump Company is the lowest and most responsible bidder with the amount of $143,522.13; and
WHEREAS, due to unforeseen costs a 10 percent contingency is requested for a total project amount of $157,874.33; and
WHEREAS, although $75,000.00 was budgeted for Well Rehabilitation in account 52735.029900, a budget amendment in the amount of $85,000.00 is necessary to cover the full rehabilitation project.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres does hereby authorize the City Manager to approve a contract to Don Pedro Pump Company for the Well 22, Well 32, and Well 41 Rehabilitation Project and authorizes the City Manager to approve a budget amendment to appropriate funds.
BE IT FURTHER RESOLVED the City of Ceres Finance Director is hereby authorized and directed to record the appropriate accounting entries.
ITEM 8
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 13th day of February 2023, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
________________________________
Javier Lopez, Mayor
ATTEST:
_________________________________
Fallon Martin, City Clerk
ITEM 8
Exhibit A
Exhibit "A"
Budget Amendment No.
Fiscal Year 2022 - 2023
Reference Resolution No. 2023- , dated February 13, 2023 authorizing the appropriation of additional funds for the Well 22, Well 32, and Well 41 Rehabilitation Project as follows:
Appropriations:
Fund Name Fund
No.
Dept.
No.
Object
No.
Appropriation
Amount
Contract Services 527 35 029900 $85,000.00
(Well/Pump Station
Maintenance, Repair &
Upgrade)
Requested Appropriation $85,000.00
2022 - 2023 Current Appropriation $75,000.00
Total Appropriation $160,000.00
Estimated Revenues:
Fund Name Fund
No.
Type
No.
Object
No.
Estimated
Revenue Amt.
Total Estimated Revenue $0.00
2022 - 2023 Current Estimated Revenue $0.00
Total Estimated Revenue $0.00
Fiscal Impact:
ITEM 8
ITEM 8
PUBLIC WORKS DEPARMENT
2220 MAGNOLIA STREET
CERES, CA 95307-0217
(209) 538-5732
FAX (209) 538-5605
BID SUMMARY
Water Well Rehab Wells 22, 32, and 41
Friday January 13th at 5:00 p.m.
Company Quote
1. Howk Systems
$165,000.00
2. Don Pedro Pump $143,522.13
3. Pump Repair Service No Bid
4. Road Runner
No Bid
ITEM 8
ITEM 8
AGREEMENT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into in the CITY of Ceres, State of California, this 13th day of February 2023, by and between the CITY OF CERES, a municipal corporation of the State of California, hereinafter referred to as "CITY", and Don Pedro Pump Company, hereinafter referred to as "CONTRACTOR" each individually a “Party” or collectively the “Parties”). There are no other parties to this Agreement.
NOW, THEREFORE, in consideration of this Agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES / PLANS AND SPECIFICATIONS
In compliance with all terms and conditions of this Agreement, the CONTRACTOR shall provide the contracted services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “services” or “work” hereunder. As a material inducement to the CITY entering into this Agreement, CONTRACTOR represents that it is a provider of work and services consistent with the standards of care, diligence and skill ordinarily exercised by contractors in similar circumstances in accordance with sound practices and that CONTRACTOR is experienced in performing the work and services contemplated herein. CONTRACTOR covenants that it will follow sound practices and standards in performing the work and services required hereunder and that all work product will be of good quality, fit for the purpose intended.
2. COMPLIANCE WITH LAW
All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the CITY and any Federal, State, or local governmental agency having jurisdiction in effect at the time service is rendered.
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3. LICENSES, PERMITS, FEES, & ASSESSMENTS
CONTRACTOR shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. CONTRACTOR shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties, and interest, which may be imposed by law and arise from or are necessary for the CONTRACTOR’S performance of the services required by this Agreement, and shall indemnify, defend and hold harmless CITY against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against CITY hereunder.
4. FAMILIARITY WITH WORK
By executing this Agreement, CONTRACTOR warrants that
CONTRACTOR: (a) has thoroughly investigated and considered the Scope of Services to be performed; (b) has carefully considered how the services should be performed; and, (c) fully understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. If services involve work upon any site, CONTRACTOR warrants that CONTRACTOR has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the CONTRACTOR discover any latent or unknown conditions which will materially affect the performance of the services hereunder, CONTRACTOR shall immediately inform the CITY of such fact and shall not proceed except at CONTRACTOR’S risk until written instructions are received from the City’s contract officer for this Agreement (“Contract Officer”).
5. FURTHER RESPONSIBILITIES OF PARTIES
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
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6. ADDITIONAL SERVICES
CITY shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the CONTRACTOR, incorporating therein any adjustment in (i) the contract sum, as set forth in Exhibit A, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the CONTRACTOR. Any change in compensation of ten percent (10%) or less of the Contract Sum, or in the time to perform, may be approved by the Contract Officer. Any greater change, taken either separately or cumulatively must be approved by City Council. It is expressly understood by CONTRACTOR that the provisions of this section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. CONTRACTOR hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than CONTRACTOR anticipates and that CONTRACTOR shall not be entitled to additional compensation, therefore.
7. TERM OF AGREEMENT
This Agreement shall be effective March 1, 2023 and will continue in effect until February 28, 2024 or when completed, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
8. COMMENCEMENT OF WORK
CONTRACTOR shall not undertake any work or incur any costs whatsoever under the terms of this Agreement except upon the prior receipt of a fully executed Purchase Order from the Ceres Department of Finance. Any costs incurred by CONTRACTOR prior to receipt of a purchase order shall be at CONTRACTOR’S expense.
9. COMPENSATION
For the services rendered pursuant to this Agreement, the CONTRACTOR shall be paid the amounts as provided in Exhibit B. The total compensation to CONTRACTOR shall not exceed ONE HUNDRED FORTY-THREE THOUSAND FIVE HUNDRED TWENTY-TWO DOLLARS AND THIRTEEN CENTS ($143,522.13) unless ITEM 8
the Parties mutually agree in writing otherwise.
10. TIME OF ESSENCE
Time is of the essence in the performance of this Agreement.
11. SCHEDULE OF PERFORMANCE
CONTRACTOR shall begin to perform work required by the Scope of Services as provided in Exhibit A, immediately following receipt of a Notice to Proceed from the CITY. In addition to extensions granted under paragraph 12, when requested by the CONTRACTOR, other extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, if the extension is determined, in the sole discretion of the Contract Officer, to be justified and reasonable.
The Contract Officer’s decision shall be final.
12. FORCE MAJEURE
The time period(s) specified in the Schedule of Performance for performance of the work rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control of CONTRACTOR and without the fault or negligence of CONTRACTOR, including but not limited to severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the CITY, if the CONTRACTOR shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall CONTRACTOR be entitled to recover damages against the CITY for any delay in the performance of this Agreement, however caused, CONTRACTOR’S sole remedy being extension of the Agreement pursuant to this Section.
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13. OBLIGATIONS OF CONTRACTOR
Throughout the term of this Agreement, CONTRACTOR shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. CONTRACTOR warrants that he has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide CITY with the contracted services contemplated by this Agreement. CONTRACTOR further warrants that he will reasonably follow the current, generally accepted, and professional practices and provide professional advice and recommendations regarding the performance of all work under this Agreement.
14. SUBCONTRACTING
Should the CONTRACTOR elect to engage any subcontractor(s) to perform any portion of the work, CONTRACTOR shall provide the CITY written notice of the name, address, telephone number, and State contractor’s license number of each such subcontractor, together with proof of workers’ compensation coverage for each such contractor. CONTRACTOR shall remain fully responsible for all acts or omissions of said subcontractors, their employees, agents or assigns.
15. INTEREST OF CONTRACTOR
CONTRACTOR warrants that he/it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement.
CONTRACTOR warrants that, in performance of this Agreement, CONTRACTOR shall not employ any person having any such interest. CONTRACTOR agrees to file a Statement of Economic Interests with the CITY Clerk at the start and end of this Agreement if so required at the option of CITY.
16. RECORDS
CONTRACTOR shall keep, and require subcontractors to keep, such books and records as shall be necessary to document the work required by this Agreement and enable the Contract Officer to evaluate the performance of such work.
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The Contract Officer shall have full and free access to such books and records at all times during normal business hours of CITY, including the right to inspect, copy, audit, and make records and transcripts from such records. Such records shall be maintained for a period of four (5) years following completion of the services hereunder, and the CITY shall have access to such records in the event any audit is required.
17. AMENDMENTS
Both parties to this Agreement understand that it may become desirable or necessary during the performance of this Agreement, for CITY or CONTRACTOR to modify the Scope of Services provided for under this Agreement. Any material extension or change in the Scope of Services shall be discussed with CITY and the change and cost shall be memorialized in a written amendment to the original Agreement prior to the performance of the additional work.
Until a change order is so executed, CITY will not be responsible to pay any charges CONTRACTOR may incur in performing such additional services, and CONTRACTOR shall not be required to perform any such additional services.
18. INDEPENDENT CONTRACTOR
All acts of CONTRACTOR, his agents, officers, and employees and all others acting on behalf of CONTRACTOR relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of CITY. CONTRACTOR, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of CITY. CONTRACTOR has no authority or responsibility to exercise any rights or power vested in CITY. No agent, officer, or employee of CITY is to be considered an employee of CONTRACTOR. It is understood by both CONTRACTOR and CITY that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
CONTRACTOR, his agents, officers and employees are and, at all times during the term of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of CITY.
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CONTRACTOR shall determine the method, details and means of performing the work and services to be provided by CONTRACTOR under this Agreement. CONTRACTOR shall be responsible to CITY only for the requirements and results specified in this Agreement and, except as expressly provided in this Agreement, shall not be subjected to CITY'S control with respect to the physical action or activities of the CONTRACTOR in fulfillment of this Agreement. CONTRACTOR has control over the manner and means of performing the services under this Agreement.
CONTRACTOR is permitted to provide services to others during the same period service is provided to CITY under this Agreement. If necessary, CONTRACTOR has the responsibility for employing other persons or firms to assist CONTRACTOR in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by CONTRACTOR, such persons shall be entirely and exclusively under the direction, supervision, and control of CONTRACTOR. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the CONTRACTOR.
It is understood and agreed that as an independent contractor and not an employee of CITY neither the CONTRACTOR nor CONTRACTOR'S assigned personnel shall have any entitlement as a CITY employee, right to act on behalf of CITY in any capacity whatsoever as an agent, or to bind CITY to any obligation whatsoever.
As an independent contractor, CONTRACTOR hereby indemnifies and holds CITY harmless from any and all claims that may be made against CITY based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
19. NOTICES
Any and all notices permitted or required to be given hereunder shall be deemed duly given and effective (1) upon actual delivery, if delivery is by hand; or (2) five (5) days after delivery into the United States mail if delivery is by postage paid registered or certified (return receipt requested) mail. Each such notice shall be sent to ITEM 8
the parties at the address respectively indicated below or to any other address as the respective parties may designate from time to time in writing.
FOR CONTRACTOR: Name: Don Pedro Pump Company
Address: 1930 S. Walnut Road
Attention: Gary Rossiter
Phone: (209)632-3161
FOR CITY: Name: CITY of Ceres
Address: 2720 Second St.
Ceres, CA 95307
Attention: Sam Royal
Phone: (209) 538-5717
20. INSURANCE REQUIREMENTS
Insurance shall be provided as specified in Exhibit C.
21. TERMINATION OF AGREEMENT
Termination on Occurrence of Stated Events
This Agreement shall terminate automatically on the date on which any of the following events occur: (1) bankruptcy or insolvency of CONTRACTOR, (2) legal dissolution of CONTRACTOR, or (3) death of key principal(s) of CONTRACTOR.
Termination by CITY for Default of CONTRACTOR
Should CONTRACTOR default in the performance of this Agreement or materially breach any of his provisions, at its option CITY may terminate this Agreement by giving written notification to CONTRACTOR. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include but not be limited to any of the following: failure to perform required services or duties, willful destruction of CITY'S property by CONTRACTOR, dishonesty, or theft.
Termination by CONTRACTOR for Default of CITY
Should CITY default in the performance of this Agreement or materially breach any of its provisions, at his/its option CONTRACTOR may terminate this Agreement by giving written notice to CITY. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement ITEM 8
shall include but not be limited to any of the following: failure to pay CONTRACTOR as hereafter provided, willful destruction of CONTRACTOR'S property by CITY, dishonesty, or theft.
Termination by CITY for Lack of Budgeted Funds
CITY may terminate this Agreement effective July 1 of any given year upon CITY'S determination to not appropriate sufficient funds for this Agreement for the ensuing fiscal year. In such event, CITY shall give CONTRACTOR not less than 30 days written notice.
Termination for Failure to Make Agreed-Upon Payments
Should CITY fail to pay CONTRACTOR all or any part of the payments set forth in this Agreement on the date due, at his option CONTRACTOR may terminate this Agreement if the failure is not remedied within thirty (30) days after CONTRACTOR notifies CITY in writing of such failure to pay. The termination date shall be the effective date of the notice.
Termination by CITY for Change of CONTRACTOR'S Tax Status If CITY determines that CONTRACTOR does not meet the requirements of federal and state tax laws for independent contractor status, CITY may terminate this Agreement by giving written notice to CONTRACTOR. The termination date shall be the effective date of the notice.
Voluntary Termination
The parties may terminate this contract upon mutual written Agreement.
In the Event of Termination
If this Agreement is terminated pursuant to this Paragraph, CONTRACTOR shall cease all his work on the project as of the termination date and shall see to it that his employees, subcontractors, and agents are notified of such termination and cease their work. If CITY so requests, and at CITY'S cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’S work on the project.
If the Agreement is terminated pursuant to any of the subsections contained in this paragraph, CITY will pay CONTRACTOR an amount based on the ITEM 8
percentage of work completed on the termination date; this percentage shall be determined by CITY in its sole discretion. If the Agreement is terminated pursuant to the subparagraph entitled Termination by CITY for Default of CONTRACTOR, CONTRACTOR understands and agrees that CITY may, in CITY'S sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR'S services which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CITY as of the termination date.
22. INDEMNITY
CONTRACTOR shall indemnify, defend and hold harmless CITY and its officers, officials and employees from and against all claims, damages, losses and expenses including reasonable attorney fees arising out of the performance of the work described herein, caused in whole or in part by any act or omission of the CONTRACTOR, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY.
CONTRACTOR'S obligation to defend, indemnify, and hold CITY, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for CONTRACTOR to procure and maintain a policy of insurance.
23. RETENTION
CITY shall retain ten percent (10%) of the contract price until final completion and acceptance of the project. The CITY shall release the retention not later than sixty (60) days after the date of completion of the work of improvement as defined in Public Contract Code, Section 7107. In the event of a dispute between the CITY and the CONTRACTOR the CITY may withhold from the final payment an amount not to exceed 150 percent of the disputed amount.
24. ENTIRE AGREEMENT
This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this Agreement which vary from CONTRACTOR'S proposal are controlling and are deemed accepted by ITEM 8
CONTRACTOR by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
25. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
26. WAIVER
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
27. AUDIT
CITY'S duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify CONTRACTOR'S charges to CITY under this Agreement.
CONTRACTOR agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for CONTRACTOR services. CITY'S representative shall have the right to reproduce any of the aforesaid documents.
28. CONTRACT BONDS
CONTRACTOR shall provide in accordance with Sections 3247 and 3248 of the California Civil Code a payment bond for not less than 100% of the Agreement price. CONTRACTOR shall also provide a faithful performance bond for not less than 100% of the Agreement price. All bonds must be executed by a corporate surety licensed to conduct business in the State of California and approved by the CITY.
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29. PAYMENT OF REVAILING WAGES
CONTRACTOR shall pay to all persons performing work under this Agreement the general prevailing rate of per diem wages as determined by the Department of Industrial Relations of the State of California.
30. WARRANTY
CONTRACTOR does hereby warrant and guarantee for a period of one year from acceptance of the work of improvement by the CITY that the work of improvement will be free of all defects caused by defective work or defective materials.
Should the CITY give written notice to the CONTRACTOR of any defects in the work of improvement within the said one year period, CONTRACTOR shall cause all necessary repairs or replacements to be made without cost to the CITY. Should CONTRACTOR fail to make the required repairs or replacements within thirty (30) days from receipt of notice from the CITY, the CITY may cause the repairs or replacements to be made by contract with a third party or by use of CITY forces. The cost of such repairs or replacements shall be paid by the CONTRACTOR. Should CONTRACTOR fail to make payment for the cost of said repairs or replacements, in addition to the cost of said repairs or replacement CONTRACTOR shall pay the CITY’s actual cost of litigation including at witness fees.
31. NONDISCRIMINATION
During the performance of this Contract, CONTRACTOR and its subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age (over 40) or set. CONTRACTOR and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. CONTRACTOR and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, Section 12990 et seq.) and the applicable regulations promulgated hereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990, set forth in Chapter 5 of Division 4 of Title 2 of the ITEM 8
California Code of Regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. CONTRACTOR and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
This CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Contract.
32. GOVERNING LAW
This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws or the State of California.
Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Stanislaus, State of California, or any other appropriate court in such county, and CONTRACTOR covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
33. HEADINGS NOT CONTROLLING
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
34. CITY BUSINESS LICENSE
CONTRACTOR will have a CITY of Ceres business license, as required.
35. ATTORNEYS’ FEES
If either party to this Agreement is required to initiate or defend or is made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees.
Attorneys’ fees shall include attorneys’ fees on any appeal, and in addition a party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable if such action is prosecuted to judgment.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below.
Dated , 2023 Dated , 2023
CITY OF CERES, a municipal corporation CONTRACTOR
By By
Alex Terrazas, City Manager Signature
Typed name/title
APPROVED AS TO FORM CONTRACTOR’S Federal ID#:
Nubia Goldstein, City Attorney
CONTRACTOR’S CA State License
ATTEST Board #:
Fallon Martin, City Clerk
ITEM 8
1 P u b l i c W o r k s D e p a r t m e n t
2220 Hackett Road
Ceres, Ca. 95307
Phone: (209) 538-5732
Fax: (209) 538-5605
Scope of Services:
This Scope of Services includes tasks to be completed by the contractor to perform a complete Well Rehabilitation for Wells 22, 32, and 41. Items included within this scope of work include:
1. Remove motor and pump
2. Video log of well
3. Scrub casing
4. Well rehabilitation
5. Rebuild or replace motor
6. Pump replacement if required
7. Well disinfection and sampling
8. Post rehabilitation pump test
Background:
Well 22
Well 22 is located at 1921 Rockefeller Ave. The well was drilled in 1984 to a completed depth of 2 53’.
The bore hole is 30” in diameter from the ground surface to a depth of 110’. From 1 10’ to the completion depth of 253’, the bore hole is 28”. Perforations are at depths from 124’ to 147’, from 162’ to 173’, from 19 2’ to 210’, and from 288 ’ to 2 46’. There is a cement seal from the ground surface to 110’ and gravel pack from 110 ” to th e bottom of the well at 253 ’. A copy of the Well D rillers Log , several years’ worth of Pump Efficiency Test results. There is a 125 HP Vertical Turbine pump.
In June of 2022, the pump failed and was removed and replaced. A video of the well casing indicated that the wells screens are plugged and in need of rehabilitation.
In 2009, the pump was remove d for well and casing rehabilitation. The reason for this rehabilitati on was to determine why the flow had dropped off significan tly. The well was also producing sand that had the potential to severely damage the uranium removal equipment. The video log showed 95 – 100 % screen blockage in all four sec tions of screened area. The video also showed a section of the column piping had broken free and was resting at the bottom of the well. This broken pipe was removed from the well during the rehabilitation process.
Well 22 casing was scrubbed followed by the application of chemical treatment (acid) to clean and
EXHIBIT A
ITEM 8
2 open up screened areas. Air burst technology was used in the screened areas to insure acid penetrated screened areas and opened screens. Following the chemical treatment and the air bust, the casing was scrubbed again . The debris was removed by jetting the well . A follow-up video log of well to verify results.
Well 32
Well 32 is located 4209 Blaker Road. The well was drilled in 1989 to a completed depth of 360’. The bore hole is 28” in diameter. There is an 18” casing from ground surface to 360’. Perforations are at depths from 205’ to 210’, from 218’ to 248’, from 258’ to 2 70’, from 300’ to 308’, and from 342 ’ to 356 . There is a cement seal from the ground surface to 1 81’ and gravel pack from 1 81” to the bottom of the well at 360’.
A copy of the Well Drillers Log, several years’ worth of Pump Efficiency Test results are available. There is a 150 HP Vertical Turbine pump.
Well 32 and the Arsenic Removal Treatment Plant is important for water quality and quantity and is needed for overall production to the water sy stem capacity. The City Water System is solely reliant upon its wells and pumping system and it is imperative that all wells are operating to their maximum efficiency.
The Arsenic Removal Treatment Plant requires adequate and consistent flow to properly re move the contaminant.
In April 2019, water from the well began flowing at a rate significantly less than its designed ability. The water level in the well was lower than the equipment causing air to be pumped from the well. These conditions will cause water hammer in the distribution system due to air pockets as well as the nuisance of air entrained in the water causing it to look cloudy. More importantly it fouls the treatment process for the removal of Arsenic/ Manganese potentially causing a violation o f o ur permit to operate from the State Water Board.
Water pressure in the system had fallen to undesirable levels as low as 30 psi on watering days . In May 2019, emergency pump repairs were done including removing the motor and pump. A quick fix was performed at that time to retain the supply with the intention of performing a more detailed rehabilitation this winter.
An initial video of the well showed serious plugging of the screens in the well c asing. Redevelopment of the well is required to re -establish adequate flow for the proper operation of the Arsenic Removal Treatment Plant and to meet the demands of water system including fire protection. Don Pedro Pump Company swabbed and jetted the well to clean the c asing in May 2019. The addition of hydron ium acid was applied to open the screens of the c asing and allow water to move freely fro m the surrounding aquifer. An air burst technique was used to push the chemical into the screens and open the pores of the gravel pack. To redevelop the well, water was pumped from the well along with all the sediments that had broken free during the jetti ng and air bursts. The test pump indicated the well production was still inadequate. The well was videoed again and the screens were found to still be plugged. The pro cess of scrubbing, jetting, air bursting, and pumping was started again. The final video log and test pump indicated the well was rehabilitated and the pump and column were reinstalled. The programming for the well
EXHIBIT A
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3 operation was changed so the flow f rom the we ll would remain at 800 gpm, rather than 1, 500 gpm to avoid breaking suction. For a while, the well returned to almost its full capacity.
Well 41
Well 41 is located 2701 Riverpark Drive. The well was drilled in 2014 to a completed depth of 370’. The bore hole is 28”. There is a 16” casing from ground surface to 360’. Perforations are at depths from 150’ to 200’ and from 330’ to 270’. There is a cement seal from the ground surface to 1 44’ and gravel pack from 144” to the bottom of the well at 380’. A copy of the Well Drillers Log, several years’ wor th of Pump Efficiency Test results are available.
In 2022, the pump failed, and it was pulled and repair ed. After the repairs were made, silt, sand, and air began to be pumped from the well indicating a plugged gravel pack.
Specifications:
1. Remove electric motor an d deep well turbine pump, or submersible pump repair and /or replace if needed.
a. All equipment shall be hauled off site and disposed of at contractor’s expense.
Contractor shall be responsible for al l site safety and security during construction. It will be the contractor’ s responsibilit y to lock out all service disconnects. Remove electric motor, discharge head, column piping, shafting, and pump. The electric motor shall be sent to Industrial Electric for complete rewind if needed. At this point a meeting shall be had between City staff and contractor to determine if pump needs to be rebuilt and /or should be replaced. Pricing should be based on complete replacement of pump, cleaning of existing column pipe, replacement of shafting, spide rs, and bearings. Sand blas ting the discharge head . Pricing shall include having the motor completely gone through from the motor shop listed above.
2. Video log of well
a. The contractor shall insure the clarity of the water prior to video of the well. Camera shall have viewing of a full 360 degrees. Log shall be made using actual footages and make special note of all welded seams, perforated areas, and any abnormalities within the well. Video shall be supplied on a DVD.
3. Scrub casing
a. The casing shall be scrubbed using nylon brushes sized appropriately for the well casing.
All loose material within the well shall be jetted into a Baker Tank. All water can be drained off into the onsite drainage system (field, storm drain); solids shall be hauled off to a land fill. The contractor shall be responsible for the Baker Tank, its content, and draining of the water.
EXHIBIT A
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4 4. Well rehabilitation
a. The well rehabilitation process shall be done using chemicals designed for well rehabilitation. Contractor shall make the best determination of the type and amount of chemical to be used based on video log of well, materials removed from the well and well design. Approved technology for this project will be chemicals used in well rehabilitation processes only.
i. Contractor shall s upply city staff with a process description of chemicals and usage prior to disinfection
b. It s hall be the contractor’s responsibility to deliver all material SDS’s and a process description to City staff prior to any work being done for approval. c. Each perforated area within the well shall be sealed off with a packer prior to using chemicals to contain the chemical within that perforated area. d. Using a double disk surge block and pumping simultaneously, swab the entire well screen from to p to bottom and con tinue unti l all water being produce d is providing evidence that the well is clean and free from plugging material. e. Contractor shall p erform flow tests by test pumping and supply results to the City for approval of effectiveness of the rehabilitation and improvements
5. Pump and column shall be reused
6. Pump discharge he ad shall be completely rebuilt if needed with new bushings, clean stuffing box, new packing gland follower, and base completely sandblasted and re painted to mat ch existing.
a. Only NSF Standard 61 approved lubricants shall be used when threading column pipi ng and shafting together.
b. Contractor shall reconnect electrical, install new flexibl e con duit between the existing conduit from the ground to the J Box of the motor, and check for proper rotation. .
7. Well disinfection and sampling
a. Prior to well disinfecti on and bacteriological sampling, the contractor shall supply the city with a disinfection plan along with the certified lab to be used for this process. b. Apply the appropriate amount of chlorine to disinfect the well, let set for 24 hours, flush well to wa ste dechlorinating the water as it is wasted. Contractor shall be responsible for t he samp ling of the well, contracting with a certified lab to perform the analysis.
Project will be accepted as complete when the City receives a test report from the certified lab with a result of negative for t he presence/absence coliform and E.coli test and less than 1 for Heterotrophic Plate Count (HPC).
8. Post rehab pump test
a. Upon completion of the rehab, contractor shall contact Power Hydrodynamics, 6301 Bearden Ln., Modesto, CA 95357 for a Complete Pump Efficiency Test.
EXHIBIT A
ITEM 8
5 Information:
1. Any information that the City cannot provide to the contractor that is necessary to properly perform the scope of work is the responsibility of the contractor to obtain and or develop.
2. Contractor will be responsible for all site safety and security of the well site during construction.
3. When the pump is removed from th e well and for the l ength of ti me that the pump is out of the well, the contractor shall place a steel plate large enoug h and heavy enough to remain over the open hole to protect from vandalism. It will be the contractor’s responsibility to ensure the security of this well while the pump is removed.
4. Upon completion of Rehabilitation, specific capacity shall not be less than it was before rehab was performed. Should this happen, contractor shall perform rehabilitation as prescribed above at his own expense.
5. No additional equipment or materials shall be installed on the pumping equipment or in the well without prior approval by the City of Ceres.
6. All materials, supplies, and workmanship shall be done to AWWA Standards.
7. Should any chemical be used during the course of work, it shall be approved by the City of Ceres prior to use by contractor.
8. As work is being performed on a well and it is determined by both parties that upgrades are necessary to better the efficiencies of the well / pumping facility. Contractor agrees to pass the costs of the upgrade to the City at cost p lus a percentage markup. This cost will be supplied to the city in an invoice accompanied by original receipts prior to payment.
9. No interpretation of the meaning of the bid or specifications will be made to any bidder orally.
All requests for interpretations and or clarification shall be in the form of an e-mail. (See notes below for contact information)
10. All interpretations, and or supplemental instructions will be in the form of written addenda to the bid and will be sent by e-mail to all bidders. Failure of any bidder to not acknowledge said addenda on the attached bid form shall cause the bid to be rejected. All addenda issued shall become part of the contract documents. The City may, in its discretion, extend the time for opening bids as necessary to allow bidders to respond to the addenda.
11. Proposals may be rejected if they show any alteration on form, additions not called for, conditional bids, incomplete bids, unbalanced prices, and irregularities of any kind.
The City reserves the right to reject any and all proposals.
12. This is a prevailing wage project; It shall be the contractor’s responsibility to make the labor rate determination. It shall also be the contractor’s responsibility to maintain all records for a minimum of five years and meet a ll reporting requirements from the (DIR) Department of Industrial Relations.
13. Contractor must enter into a Standard Public Works Contract and have a cu rrent City of Ceres Business license on file prior to City Council Awa rd of proje ct. Standard Public Works (Draft) Contract is attached for review.
EXHIBIT A
ITEM 8
6 Bid Summary
THE UNDERSIGNED AFFIRMS THAT IT IS DULY AUTHORIZED TO SUBMIT THIS BID, THAT
THIS BID HAS NOT BEEN PREPARED IN COLLUSION WITH ANY OTHER RESPONDENT,
AND THAT THE CONTENT OF THIS BID HAS NOT BEEN COMMUNICATED TO ANY OTHER RESPONDENT. CITY RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS.
COMPANY NAME:
REPRESENTATIVE'S NAME:
REPRESENTATIVE’S E-MAIL:
PHONE NUMBER: FAX NUMBER: _ DATE:
CONTRACTOR’S LICENSE #
MATERIALS % MARKUP: _________
TOTAL LUMP SUMP PROJECT COST: _____________
AUTHORIZED SIGNATURE:
EXHIBIT A
ITEM 8
BID / SCOPE
DATE
1/3/2023
CUSTOMER
City of Ceres
2220 Hackett Rd.
Ceres, CA 95307
Don Pedro Pump
P.O. Box 1038
Hughson, Ca 95326
TERMS:
Net 30
Accepted By________________________________________________ TOTAL
Date _____________
DESCRIPTION QTY COST TOTAL
We are pleased to offer this recommendation and estimated costs to provide the following: Well 22, 1921 Rockefeller Avenue, Ceres CA 95307 1) Pull DWT - Disassemble & Inspect
2) Video Survey
3) Rehab Well & Reinstall
0.00 0.00T
Hrs. Lead Man Pull/Set 16 97.00 1,552.00
Hrs. Laborer 32 88.00 2,816.00
Truck #36 Pulstar Pump Truck JA 16 80.00 1,280.00
Truck #46 Dodge Flat Bed 16 50.00 800.00
Video Survey 1 800.00 800.00
Swab /Jetting / AirLift - per hr. 40 425.00 17,000.00
Packer / Tanks - Day 5 1,450.00 7,250.00
Hydronium Acid - Gal. NSF 61 Grade 275 8.50 2,337.50T
Hrs. Machinist 24 97.00 2,328.00
Pump / Well Eff. Test 1 428.57 428.57
Truck #56 - 40 Ton 40 275.00 11,000.00
12.5% Chlorine - Gal 5 11.97 59.85T
NOTES / EXCLUSIONS
1) Materials needed for any possible repairs, following removal and inspection of the pump will be quoted separately
2) Condtion such as Falling Water / Entrapted Gas in the Well may be factors that are not treatable with rehabilitation.
0.00 0.00T
Sales Tax for Stan. Co. 7.875% 188.79
Don Pedro Pump , Inc.
License #745963
$47,840.71
EXHIBIT B
ITEM 8
BID / SCOPE
DATE
1/3/2023
CUSTOMER
City of Ceres
2220 Hackett Rd.
Ceres, CA 95307
Don Pedro Pump
P.O. Box 1038
Hughson, Ca 95326
TERMS:
Net 30
Accepted By________________________________________________ TOTAL
Date _____________
DESCRIPTION QTY COST TOTAL
We are pleased to offer this recommendation and estimated costs to provide the following: Well 32, 4209 Blaker Road, Ceres CA 95307
.1) Pull DWT - Disassemble & Inspect
2) Video Survey
3) Rehab Well & Reinstall
0.00 0.00T
Hrs. Lead Man Pull/Set 16 97.00 1,552.00
Hrs. Laborer 32 88.00 2,816.00
Truck #36 Pulstar Pump Truck JA 16 80.00 1,280.00
Truck #46 Dodge Flat Bed 16 50.00 800.00
Video Survey 1 800.00 800.00
Swab /Jetting / AirLift - per hr. 40 425.00 17,000.00
Packer / Tanks - Day 5 1,450.00 7,250.00
Hydronium Acid - Gal. NSF 61 Grade 275 8.50 2,337.50T
Hrs. Machinist 24 97.00 2,328.00
Pump / Well Eff. Test 1 428.57 428.57
Truck #56 - 40 Ton 40 275.00 11,000.00
12.5% Chlorine - Gal 5 11.97 59.85T
NOTES / EXCLUSIONS
1) Materials needed for any possible repairs, following removal and inspection of the pump will be quoted separately
2) Condtion such as Falling Water / Entrapted Gas in the Well may be factors that are not treatable with rehabilitation.
0.00 0.00T
Sales Tax for Stan. Co. 7.875% 188.79
Don Pedro Pump , Inc.
License #745963
$47,840.71
EXHIBIT B
ITEM 8
BID / SCOPE
DATE
1/3/2023
CUSTOMER
City of Ceres
2220 Hackett Rd.
Ceres, CA 95307
Don Pedro Pump
P.O. Box 1038
Hughson, Ca 95326
TERMS:
Net 30
Accepted By________________________________________________ TOTAL
Date _____________
DESCRIPTION QTY COST TOTAL
.
We are pleased to offer this recommendation and estimated costs to provide the following: Well 41, 2701 Riverpark Drive, Ceres CA 95307 1) Pull DWT - Disassemble & Inspect
2) Video Survey
3) Rehab Well & Reinstall
0.00 0.00T
Hrs. Lead Man Pull/Set 16 97.00 1,552.00
Hrs. Laborer 32 88.00 2,816.00
Truck #36 Pulstar Pump Truck JA 16 80.00 1,280.00
Truck #46 Dodge Flat Bed 16 50.00 800.00
Video Survey 1 800.00 800.00
Swab /Jetting / AirLift - per hr. 40 425.00 17,000.00
Packer / Tanks - Day 5 1,450.00 7,250.00
Hydronium Acid - Gal. NSF 61 Grade 275 8.50 2,337.50T
Hrs. Machinist 24 97.00 2,328.00
Pump / Well Eff. Test 1 428.57 428.57
Truck #56 - 40 Ton 40 275.00 11,000.00
12.5% Chlorine - Gal 5 11.97 59.85T
NOTES / EXCLUSIONS
1) Materials needed for any possible repairs, following removal and inspection of the pump will be quoted separately
2) Condtion such as Falling Water / Entrapted Gas in the Well may be factors that are not treatable with rehabilitation.
0.00 0.00T
Sales Tax for Stan. Co. 7.875% 188.79
Don Pedro Pump , Inc.
License #745963
$47,840.71
EXHIBIT B
ITEM 8
EXHIBIT C
INSURANCE REQUIREMENTS FOR CONTRACTORS
Contractor shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by t
he CONTRACTOR, his agents, representative, employees or subcontractors.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Ins
urance Services Offices (ISO) Commercial General Liability coverage (occurrence Form CG 00 01).
2. Insurance Services Office (ISO) Form CA 00 01 covering Automobile Liability, code 1 (any auto).
3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance
Minimum Limits of Insurance
Cont
ractor shall maintain limits no less than:
1. General Liability:
(including operations, products
and completed operations)
$2,000,000 per occurrence for bodily injury,
personal injury and property
damage. If Commercial General
Liability insurance or other form
with a general aggregate limit is
used, either the general aggregate
limit shall apply separately to this
project/location or the general
aggregate limit shall be twice the
required occurrence limit.
2. Automobile Liability: $2,000,000 per accident for bodily injury and property damage
3. Workers’ Compensation $1,000,000 Vendor shall maintain Worker’s Compensation
Insurance (Statutory Limits)
and Employer’s Liability
Insurance with limits of at
least one million dollars
($1,000,000).
ITEM 8
4. Employer’s Liability: $1,000,000 Per accident for bodily injury or disease.
If the contractor maintains higher limits than the minimums shown above, the entity shall be entitled to coverage at the higher limits maintained by the contractors.
SPECIFICATIONS FOR COMMON SITUATIONS
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the entity. At the option of the entity, either (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the entity, its officers, officials, employees and volunteers or (b) the contractor shall provide a financial guarantee satisfactory to the entity guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
Other Insurance Provisions
The general liability policy is to contain, or be endorsed to contain, the following provisions:
1. The entity, its officers, officials, employees, and volunteers are to be covered as insured with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the contractor; and with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided with two endorsement forms: 1) in the form of an additional insured endorsement to the Contractor’s insurance or as a separate owner’s police (CG 20 10 11 85 or its equivalent language) and 2) a CG 20 37 10 01 endorsement form or its equivalent language) and 2) a CG 20 37 10 01 endorsement form or its equivalent language. A later edition of the CG 20 10 form along with the CG 20 37 coverage form will give some protection to the entity for specific locations.
2. For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance as respects the entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the entity, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days ITEM 8
prior written notice by certified mail, return receipt requested, has been given to the entity.
4. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code.
Waiver of Subrogation
Contractor hereby agrees to waive subrogation which any insurer of contractor may acquire from contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation.
SPECIFICATIONS FOR COMMON SITUATIONS (continued)
The workers’ compensation policy shall be endorsed to contain a waiver of subrogation in favor of the entity for all work performed by the contractor, its agents, employees, independent contractors and subcontractors.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the entity. This is only a recommendation. The entity may decide to accept an insurer with a rating of less than A:VII depending on various circumstances.
It is also recommended that the insurer for the contractor/consultant/vendor/lessee be “admitted” in California. This means that the insurer is licensed to do business in California, is subject to his insurance regulations and contributes to the guarantee fund.
However, there may be situations where a non-admitted insurer will have more financial strength (and the ability to respond to claims) than some admitted insurers. Please contact your broker, legal counsel or BRS when faced with this situation.
Those recommendations are applicable to almost any risk and exposure discussed in this manual.
Verification of Coverage
Contractor shall furnish the entity with copies of original certificates and endorsements, including amendatory endorsements, effecting coverage required by this clause. The endorsements should be on forms provided by the entity or on other than the entity’s forms, provided those endorsements or policies confirm to the requirements. All certificates and endorsements are to be received and approved by the entity before work commences; however, failure to do so shall not operate a waiver of these insurance requirements. The entity reserves the right to require complete, certified ITEM 8
copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
Subcontractors
Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
ITEM 8
ITEM 8
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: February 13, 2023
TO: Mayor and City Council
FROM: Alex Terrazas, City Manager
CONTACT: Marjorie Blom, Planning Consultant
[email protected], (209) 538-5762
SUBJECT:
Resolution 2023-21, Authorizing the City Manager to E nter into a Professional Services Contract with the EMC Planning Group, Inc. to Perform Professional Planning Services Related to the Preparation of the 2024- 2031 Housing Element Update , I ncluding Compliance with the California Environmental Quality Act
RECOMMENDED COUNCIL ACTION:
Staff recommends the City Council authorize the City Manager to enter into a Professional Services Contract with EMC Planning Group, Inc. for the preparation of the 2024- 2031 Housing Element Update, including compliance with the California Environmental Quality Act (CEQA).
I. BACKG
ROUND:
The purpose of the Housing Element is to identify the community's housing needs. It does this by stating the community's goals and objectives with regard to housing production, rehabilitation, and conservation to meet those needs. It also inventories existing housing resources and defines the policies and programs that the community will implement to achieve the stated goals and objectives.
California Government Code Section 65580 declares, “The availability of housing is of vital statewide importance, and the early attainment of decent housing and a suitable living environment for every Californian, including farmworkers, is a priority of the highest order.” As a result of this declaration, the State Legislature has required that all Cities and Counties must prepare a Housing Element as part of their General Plan.
State law requires cities and counties to address the needs of all income groups in their Housing Elements. The official definition of these needs is provided by the California Department of Housing and Community Development ( HCD) for each city and county within its geographic jurisdiction. Beyond these income-based housing needs, the Housing Element must also address special needs groups such as persons with disabilities and unhoused persons.
ITEM 9
Upon its adoption, the Housing Element becomes part of the General Plan. The General Plan includes the following elements: Land Use and Community Design, Transportation and Circulation, Agriculture and Natural Resources, Health and Safety, Public Facilities and Services, Economic and Community Development, and Housing.
The Housing Element must be reviewed and updated on a periodic basis. The cur rently adopted Housing Element was approved by the City Council on January 25, 2016.
State law requires the City to update its Housing Element by December 31, 2023. The City must identify programs that can accommodate sufficient housing capacity per the C ity’s Regional Housing Needs Assessment (RHNA) allocation to the satisfaction of the State Department of Housing and Community Development (HCD). It is important that the City proceeds immediately to select a housing consultant t o help the City meet the H ousing Element completion date of December 31, 2023.
Request for Proposals
In order to solicit an experienced consulting firm to help prepare and process the Housing Element Update, the City issued a Request for Proposals (RFP), on November 4, 2022 for preparation of the 2024-2031 Housing Element Update. The proposals were sent to ten qualified consulting firms. On November 28, 2023, the closing date of the RFP, two qualified proposal s were received, from EMC Planning Group, Inc., and Michael Baker International/Veronica Tam Associates. Interviews were held via Zoom by City Planning staff on January 3rd and 4th, 2023.
City Planning staff reviewed the proposals and ranked EMC Planning Group, Inc. as the most qualified consultant, based upon the RFP s submitted and the consultant interviews.
EMC Planning Group, Inc. has extensive experience with the Housing Element Update process and presented a strong community engagement and outreach plan, demonstrated understanding of the City of Ceres, and committed a principal planner and staffing for the duration of the preparation of the Housing Element Update.
Staff followed the municipal code regulations for this RFP process, as outlined in section
4.07.010.
II. RE
ASONS FOR RECOMMENDATION:
The proposed attached resolution, pending City Council approval, awards the Professional Services Agreement to EMC Planning Group, Inc. for the preparation of the City’s 2024- 2031 Housing Element Update. The approximate cost of the services to be performed by the EMC Planning Group, Inc is estimated at $220,000.
Upon Council approval and execution of the agreement, the co nsultant will begin immediately in order to meet the deadlines set by State law. It is anticipated that this process will take approximately 11- 12 months to complete. Preparation of the Housing Element Update includes a public outreach component to encourage and facilitate community participation. The City Council will be notified of outreach meetings once they are scheduled.
III. F
ISCAL IMPACTS :
ITEM 9
Two reimbursable grants will be funding the majority of the preparation of the 2023- 2031 Housing Element Update. The two grants are as follows:
1) State Housing and Community Development (HCD) Local Early Action Planning (LEAP) Grant in the amount of $150,000, City Council Resolution No. 2020-91; and 2) Stanislaus Council of Governments (StanCOG) Regional Early Action Program (REAP) Grant with an initial amount of $35,277.88 (to June 30, 2023) and then a remaining $90,468.62, for a tota l amount of $125,746.50, City Council Resolution No. 2022-77.
In total these grants will provide up to $275,746.50 towards preparation of the Housing Element Update, including feasibility studies, funds for staff to provide project management of the consultant contract, along with administration costs for the annual reporting of the grants, as required by the funding agencies. Prior to reimbursement, the city must submit detailed invoices, based on completion of the project tasks and/or deliverables associated with the each of the executed grant agreements. These agreements are on file with the City Clerk’s office).
IV. E
XISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN:
Planning for the Future: Ensure the City has plans and policies in place to attract and create desirable development, maintain and improve neighborhoods and annex land to achieve a livable community and support a strong economy.
V. P
OLICY ALTERNATIVES :
The Council could elect not to move forward with a contract with EMC Planning Group Inc. to complete the City of Ceres 6th Cycle 2024-2031 Housing Element Update.
VI. I
NTERDEPARTMENTAL COORDINATION:
N/A
VII. P
UBLIC PARTICIPATION:
N/A
VIII. EN
VIRONMENTAL REVIEW :
The negotiation or entering into a contract does not fall under the description of a “Project” under the California Environmental Quality Act (CEQA) and therefore this action is not subject to environmental review.
IX.
STEPS FOLLOWING APPROVAL:
Upon approval, staff will have EMC Planning Group, Inc. sign and return two copies of the Professional Services Contract for the preparation of the City of Ceres 2024-2031 Housing Element Update.
ITEM 9
Approved by: _____________________________
Alex Terrazas, City Manager
Attachments:
1. Resolution No. 2023-21
2. Professional Services Contract - EMC Planning Group, Inc.
ITEM 9
RESOLUTION NO. 2023-21
AUTHORIZING THE CITY MANAGER TO ENTER INTO A PROFESSIONAL SERVICES CONTRACT WITH THE EMC PLANNING GROUP, INC. TO PERFORM
PROFESSIONAL PLANNING SERVICES RELATED TO THE PREPARATION OF THE 2024-2031 HOUSING ELEMENT UPDATE, INCLUDING COMPLIANCE WITH
THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
THE CITY COUNCIL
City of Ceres
WHEREAS Request for Proposals for the 2024-2031 Housing Element Update were disseminated and a process for selection undertaken; and
WHEREAS, based on the proposal s received and evaluated by staff, EMC Planning Group, Inc., (Consultant) has the necessary qualifications and demonstrated expertise to assist the C ity in the preparation of the state required 2024- 2031 Housing Element Update; and
WHEREAS the Consultant is willing to perform such services at a cost not to exceed $220,000; and
WHEREAS, said work is to be performed in accordance with the terms and conditions set forth in the Professional Services Contract which includes the scope of services to be provided, and incorporated herein; and
WHEREAS, funding for the majority of the contract for the preparation of the 2024- 2031 Housing Element Update wou ld be reimbursable through two grants: 1) State Housing and Community Development (HCD) Local Early Action Planning (LEAP) Grant in the amount of $150,000, City Council Resolution No. 2020- 91; and 2) Stanislaus Council of Governments (StanCOG) Regional E arly Action Program (REAP) Grant with an initial amount of $35,277.88 (to June 30, 2023) and then a remaining $90,468.62, for a total amount of $125,746.50, City Council Resolution No. 2022-77.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres does hereby authorize the City Manager to enter into a Professional Services Contract with the EMC Planning Group, Inc. to perform professional planning services related to the preparation of the 2024-2031 Housing Element Update, including compliance with the California Environmental Quality Act.
BE IT FURTHER RESOLVED that the City of Ceres Finance Director is hereby authorized and directed to record the appropriate accounting entries.
ITEM 9
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 13th day of February 2023, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
________________________________
Javier Lopez, Mayor
ATTEST:
_________________________________
Fallon Martin, City Clerk
ITEM 9
-1-
AGREEMENT
FOR
PROFESSIONAL
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into in the CITY of Ceres, State of California, by and between the CITY OF CERES, a municipal corporation of the State of California, hereinafter referred to as "CITY", and EMC Planning Group Inc.., hereinafter referred to as "CONSULTANT".
NOW, THEREFORE, in consideration of this Agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES, BUDGET & SCHEDULE
In compliance with all terms and conditions of this Agreement, the CONSULTANT shall provide those services specified in the “Scope of Services, Budget, and Schedule” attached hereto as Exhibit “A” and incorporated herein by this reference, which services may be referred to herein as the “services” or “work” hereunder. As a material inducement to the CITY entering into this Agreement, CONSULTANT represents that it is a provider of work and services consistent with the standards of care , diligence and skill ordinarily exercised by professional consultants in similar circumstances in accordance with sound professional practices and that CONSULTANT is experienced in performing the work and services contemplated herein.
CONSULTANT covenants that it will follow professional standards in performing the work and services required hereunder and that all work products will be of good quality.
2. COMPLIANCE WITH LAW
All services rendered hereunder shall be provided in accordance with all applicable ordinances, resolutions, statutes, rules, and regulations of the CITY and any Federal, State, or local governmental agency having jurisdiction in effect at the time service is rendered.
3. LICENSES, PERMITS, FEES, & ASSESSMENTS
CONSULTANT shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. CONSULTANT shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the CONSULTANT’S performance of the services required by this ITEM 9
-2-
Agreement, and shall indemnify, defend and hold harmless CITY against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against CITY hereunder.
4. FAMILIARITY WITH WORK
By executing this Agreement, CONSULTANT warrants that CONSULTANT: (a) has thoroughly investigated and considered the scope of serv ices to be performed; (b) has carefully considered how the services should be performed; and (c) understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. If services involve work upon any site, CONSULTANT warrants that CONSULTANT has or will investigate the site and is or will be acquainted with the conditions there existing to the extent identifiable by visual examination, prior to commencement of services hereunder. Should the CONSULTANT discover any la tent or unknown conditions which will materially affect the performance of the services hereunder, CONSULTANT shall immediately inform the CITY of such fact and shall not proceed except at CONSULTANT’S risk until written instructions are received from the Contract Officer.
5. FURTHER RESPONSIBILITIES OF PARTIES
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
6. ADDITIONAL SERVICES
CITY shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the CONSULTANT, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the CONSULTANT. Any change in compensation of ten percent (10%) or less of the Contract Sum, may be approved by the Contract Officer. Any greater change, taken either separately or cumulatively must be approved by the CITY Council. It is expressly understood by CONSULTANT that the provisions of this s ection shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein.
ITEM 9
-3-
7. TERM OF AGREEMENT
This Agreement shall be effective upon execution by both parties and will continue in effect until CITY 'S acceptance of and payment for all services authorized by CITY and performed by CONSULTANT, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement. In no event shall the term of this Agreement exceed two years, unless extended by an agreement in writing between the parties.
8. COMMENCEMENT OF WORK
CONSULTANT shall not undertake any work or incur any costs whatsoever under the terms of this Agreement except upon the prior receipt of a fully executed Purchase Order from the Ceres Department of Finance. Any costs incurred by CONSULTANT prior to receipt of a purchase order shall be at CONSULTANT’S expense.
9. COMPENSATION
For the services rendered pursuant to this Agreement, the CONSULTANT shall be compensated not to exceed amount of $220,000, unless otherwise amended per Section 6.
CONSULTANT shall submit an invoice every 30 (thirty) days for work performed. CONSULTANT shall be paid within thirty (30) days of receipt by the CITY of a properly prepared invoice identifying the task(s) performed, the number of hours and the hourly rate. CONSULTANT shall not be compensated for travel time or vehicle expense to and from the City of Ceres beyond what has been included in the scope of work. CONSULTANT shall not be entitled to any additional consideration, compensation, salary, wages, or other type of remuneration for services rendered under this Agreement, including consideration in the form of overtime, health insurance benefits, retirement benefits, disability retirement benefits, sick leave, vacation time, paid holidays, or other paid leaves of absence of any kind whatsoever.
10. WORK SCHEDULE, WORK HOURS, OFFICE SPACE
CONSULTANT’S obligation is to perform, in a timely manner, the services required to fulfill the CITY’S objectives of the overall work tasks described in Exhibit A. It is understood by both parties that the performance of the services may require a varied schedule, with the times for completion of various work activities to be set by CITY. The CONSULTANT shall determine the days and hours they will work from week-to-week and report that schedule on a regular basis to the Contract Officer. CONSULTANT is expected to perform certain work duties at the work location in the CITY and the CITY will provide CONSULTANT with the office space , meeting space as necessary. Additionally, in coordination with the CITY Contract Officer, CONSULTANT may also perform work duties off-site at the CONSULTANT’S office.
ITEM 9
-4-
11. PERSONAL PERFORMANCE BY CONSULTANT
CONSULTANT has represented to CITY that they will be personally responsible for the performance of the services referred to in this Agreement. CITY has entered into this Agreement in reliance on that representation by CONSULTANT. CONSULTANT therefore agrees that they will not during the term of this Agreement engage others to perform any of the services under this Agreement.
12. CONTRACT OFFICER
The Contract Officer for the services performed under this Agreement shall be the Director of Community Development of the City of Ceres, or such person as he may designate.
It shall be the CONSULTANT’S responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the CONSULTANT shall refer any decisions, which must be made by CITY to the Contract Officer. Unless otherwise specified herein, any approval of CITY required hereunder shall mean the approval of the Contract Officer.
The Contract Officer shall have authority to sign all documents on behalf of the CITY required hereunder to carry out the terms of this Agreement.
13. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGMENT
The experience, knowledge, capability, and reputation of CONSULTANT were a substantial inducement for the CITY to enter into this Agreement. Therefore, CONSULTANT shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the Contract Officer or as described in the attached scope of work. In addition, neither this agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of CITY. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall, at CITY’s option, be void. No approved transfer shall release the CONSULTANT or any surety of CONSULTANT of any liability hereunder without the express consent of CITY.
14. OWNERSHIP OF DOCUMENTS/TITLE TO DATA
Ownership of Documents
Subject to receipt of payment, all reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of CITY, and may be used by CITY as it may require without any additional cost to CITY; provided, however, any use or reuse of such information and other documents by City except for the specific purpose for which such information was prepared, without the written authorization of ITEM 9
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Consultant shall be at City’s sole risk. No reports shall be used by CONSULTANT for purposes other than this contract without the express prior written consent of CITY.
All materials, documents, data or information obtained from CITY data files or any CITY medium furnished to CONSULTANT in the performance of this Agreement will at all times remain the property of CITY . Such data or information may not be used or copied for direct or indirect use by CONSULTANT after termination of this Agreement without written consent of CITY.
15. INTEREST OF CONTRACTOR
CONSULTANT warrants that they presently have no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. CONSULTANT warrants that, in performance of this Agreement, CONSULTANT shall not employ any person having any such interest. CONSULTANT agrees to file a Statement of Economic Interests with the CITY Clerk at the start and end of this contract if so, required at the option of CITY.
16. REPORTS
CONSULTANT shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require.
17. RECORDS
For a period of three (3) years from the date of completion of the services hereunder, CONSULTANT shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services.
18. AMENDMENTS
Both parties to this Agreement understand that it may become desirable or necessary during the performance of this Agreement, for CITY or CONSULTANT to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with CITY and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, CITY will not be responsible to pay any charges CONSULTANT may incur in performing such additional services, and CONSULTANT shall not be required to perform any such additional services.
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19. INDEPENDENT CONTRACTOR
All acts of CONSULTANT relating to the performance of this Agreement, shall be performed as independent contractor and not as an agent, officer, or employee of CITY .
CONSULTANT, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of CITY. CONSULTANT has no authority or responsibility to exercise any rights or power vested in CITY . No agent, officer, or employee of CITY is to be considered an employee of CONSULTANT. It is understood by both CONSULTANT and CITY that this Agreement shall not under any circumstances be construed or considered to create an employer -employee relationship or a joint venture.
CONSULTANT at all times during the term of this Agreement, shall represent and conduct themselves as independent contractor and not as an employee of CITY.
CONSULTANT shall determine the method, details and means of performing the work and services to be provided by CONSULTANT under this Agreement. CONSULTANT shall be responsible to CITY only for the requirements and results specified in this Agreement and, except as expressly provided in this Agreement, shall not be subjected to CITY'S control with respect to the physical action or activities o f the CONSULTANT in fulfillment of this Agreement.
CONSULTANT has control over the manner and means of performing the services under this Agreement. CONSULTANT is permitted to provide services to others during the same period service is provided to CITY under this Agreement.
As an independent contractor, CONSULTANT hereby indemnifies and holds CITY harmless from any and all claims that may be made against CITY based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
20. NOTICES
Any and all notices permitted or required to be given hereunder shall be deemed duly given and effective (1) upon actual delivery, if delivery is by hand; or (2) five (5) days after delivery into the United States mail if delivery is by postage paid regist ered or certified (return receipt requested) mail. Each such notice shall be sent to the parties at the address respectively indicated below or to any other address as the respective parties may designate from time to time in writing.
FOR CONSULTANT: N ame: EMC Planning Group, Inc.
Address: 601 Abrego Street
Monterey, CA 93940
Attention: Ande Flower, AICP, MUP, Principal Planner
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Phone: (831) 649-1799
FOR CITY: Name: CITY of Ceres
Address: 2220 Magnolia Street
Ceres, CA 95307
Attention: Christopher Hoem, Community Development Director Phone: (209) 538-5778
21. INSURANCE REQUIREMENTS
CONSULTANT shall provide proof of insurance which meets the requirements as specified in Exhibit “B”.
CONSULTANT is required to show proof of Worker’s Compensation Insurance coverage.
22. TERMINATION OF AGREEMENT
Either party may terminate this Agreement by giving the other party at least fourteen (14) days notice of its intention to terminate.
Either party may terminate this Agreement immediately should the other party commit an act of dishonesty, theft or willful destruction of property of the other party.
The parties may terminate this Agreement at any time upon the mutual written agreement of the parties.
In the Event of Termination
If this Agreement is terminated pursuant to this Paragraph, CONSULTANT shall cease all work on the project as of the termination date. If CITY so requests, and at CITY'S cost, CONSULTANT shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONSULTANT’S work. Further, if CITY so requests, CONSULTANT shall deliver to CITY any work products whether in draft or final form which have been produced to date.
If the Agreement is terminated pursuant to any of the subsections contained in this paragraph, CITY will pay CONSULTANT an amount based on the percentage of work completed on the termination date, this percentage shall be determined by CITY in its sole discretion.
23. ENTIRE AGREEMENT
This Agreement and its exhibits contain the entire understanding between CONSULTANT and CITY. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have ITEM 9
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been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
24. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
25. WAIVER
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
26. GOVERNING LAW
This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws or the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Stanislaus, State of California, or any other appropriate court in such county, and CONSULTANT covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
27. HEADINGS NOT CONTROLLING
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
28. CITY BUSINESS LICENSE
CONSULTANT will have a CITY of Ceres business license, as required.
29. ATTORNEYS’ FEES
If either party to this Agreement is required to initiate or defend or is made a party to any action or proceeding in any
way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on any appeal, and in addition a party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable if such action is prosecuted to judgment.
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30. Neither this Agreement nor any of the Services provided hereunder shall constitute or provide for, and CONSULTANT shall not be considered to have rendered, any legal or financial opinion(s).
31. This Agreement shall not create any rights or benefits to parties other than CONSULTANT and CITY. No third party shall have the right to rely on CONSULTANT opinions rendered in connection with the Services without the written consent of CONSULTANT and the third party’s agreement to be bound to the same conditions and limitations as CITY.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below.
Dated: ______________________, 2023
Dated: ______________________, 2023
CITY OF CERES, a municipal corporation
By_______________________________
Alex Terrazas, City Manager
CONSULTANT
By_______________________________
EMC PLANNING GROUP, INC.
APPROVED AS TO FORM
__________________________________
Nubia Goldstein, City Attorney
CONSULTANT’s Federal ID #
__________________________________
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EXHIBIT “A”
SCOPE OF SERVICES, BUDGET & SCHEDULE
CONSULTANT, EMC PLANNING GROUP, INC. , under administrative direction from the Community Development Director , will provide services to the City of Ceres as scoped t o complete the City of Ceres 2024-2031 Housing Element Update. Such services shall include but are not limited to the following:
SCOPE OF WORK AND SCHEDULE
See Attached
BUDGET
See Attached
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EXHIBIT “B”
INSURANCE REQUIREMENTS FOR CONSULTANTS
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the CONSULTANT, his/her agents, representatives, or employees.
Minimum Scope of insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 0001).
2. Insurance Services Office Form Number CA 00 01 covering Automobile Liability, Code 1 (any auto).
Minimum Limits of Insurance
CONSULTANT shall maintain limits no less than:
1. General Liability (Including operations, products and completed operations as applicable.):
$2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability:
$1,000,000 per accident for bodily injury and property damage.
SPECIAL SITUATIONS/CLAIMS HANDLING PROCEDURES
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the entity.
Other Insurance Provision
The commercial general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. The Entity, its officers, officials, employees, are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the ITEM 9
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CONSULTANT; or automobiles owned, leased, hired or borrowed by the CONSULTANT.
2. For any claims related to this project, the CONSULTANT’S insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees. Any insurance or self-insurance maintained by the entity, its officers, officials, employees or volunteers shall be excess of the CONSULTANT’S insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the entity.
4. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of section 2782 of the Civil Code.
If General liability, Contractors Pollution Liability and/or Asbestos Pollution Liability and/or Errors and Omissions coverages are written on a claims-made form:
1. The retroactive date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Contractor must purchase an extended period coverage for a minimum of five (5) years after completion of contract work.
4. A copy of the claims reporting requirements must be submitted to the entity for review.
5. If the services involve lead- based paint or asbestos identification/remediation, the Contractors Pollution Liability shall not contain lead- based paint or asbestos exclusions.
If the services involve mold identification/remediation, the Contractors Pollution Liability shall not contain a mold exclusion and the definition of “pollution” shall include microbial matter including mold.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII , unless otherwise acceptable to the Entity.
Verification of Coverage
CONSULTANT shall furnish the Entity with original certificates and endorsements, includi ng amendatory endorsements, effecting coverage required by this clause. The endorsements should be on forms provided by the Entity or on other than the Entity’s forms, provided those endorsements conform to Entity requirements. All certificates and endor sements are to be received and approved by the Entity before work commences; however, failure to do so shall not operate as a waiver of these insurance policies, including endorsements effecting the coverage required by these specifications at any time.
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Waiver of Subrogation
CONSULTANT hereby agrees to waive subrogation under its Workers’ Compensation policy , which any insurer of contractor may acquire from vendor by virtue of the payment of any loss.
CONSULTANT agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation.
The workers’ compensation policy shall be endorsed to contain a waiver of subrogation in favor of the entity for all work performed by the consultant, its agents, employees, independent contractors and subcontractors.
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