AGENDA
CITY COUNCIL REGULAR MEETING
CITY OF CERES, CALIFORNIA
City Council Chambers, 2701 Fourth Street
Monday, February 13, 2023 at 6:00 p.m.
Mailing Address: Ceres City Hall, 2220 Magnolia Street, Ceres, CA 95307-3292 Phone: (209) 538-5700 Fax: (209) 538-5780
CALL TO ORDER
Mayor Lopez
ROLL CALL
Mayor: Javier Lopez
Vice Mayor: Bret Silveira (District 3)
Councilmembers: James Casey (District 1); Rosalinda L. Vierra ( District 2); Daniel A.
Martinez (District 4)
NOTICE: THIS MEETING WILL BE HELD IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 54 953, SUBDIVISION (e) OF THE RALPH M. BROWN ACT (CALIFORNIA GOVERNMENT CODE SECTION 54950, ET SEQ.), CERES RESOLUTION NO 2023-12 , AND THE FEDERAL AMERICANS WITH DISABILITIES ACT. WHILE THIS MEETING WILL BE PHYSICALLY
OPEN TO THE PUBLIC, GIVEN THE STATE OF EMERGENCY REGARDING THE THREAT OF COVID- 19, MEMBERS OF THE PUBLIC MAY ALSO PARTICIPATE AND COMMENT VIA THE APPLICATION, ZOOM.
Click this link to join the webinar:
https://us02web.zoom.us/j/85932680190?pwd=SlUvQTlXU1c4OWZ2d3VkRkxBcENLUT09
Webinar ID: 859 3268 0190; Passcode: 971504; or Dial: (669) 900-6833
REMOTE PUBLIC COMMENT IS ALSO AVAILABLE FOR THE CITY COUNCIL MEETING BY EMAILING THE CITY CLERK AT [email protected] BEFORE 4:00 PM T HE DAY OF THE MEETING. INCLUDE TH E AGENDA ITEM NUMBER OR PUBLIC COMMENT PERIOD IN THE SUBJECT LINE OF THE EMAIL. THE CLERK MAY READ WRITTEN COMMENTS INTO THE RECORD, IF SPECIFICALLY REQUESTED TO DO SO AT THE BEGINNING OF YOUR EMAIL. YOUR
WRITTEN COMMENT WILL BE DISTRIBUTED TO THE CITY COUNCIL AND KEPT ON FILE AS PART OF THE OFFICIAL RECORD OF THE COUNCIL MEETING.
*If you have any questions on how to attend virtually or are encountering difficulties connecting to the meeting, please contact the City Clerk at (209) 646-4812 or by email at [email protected].
AGENDA
Regular City Council Meeting
February 13, 2023
INVOCATION
Invocation by Marvin Jacobo, Chief Executive Officer for City Ministry Network.
PLEDGE OF ALLEGIANCE
Pledge of Allegiance led by Mayor Lopez.
PRESENTATIONS
A. Recognize Outgoing Executive Director for the Chamber of Commerce, Renee Ledbetter.
B. Senate Bill 1383 and Compost Presentation.
CITIZEN COMMUNICATIONS to the Council on matters not included on the agenda (five minutes).
While the City Council welcomes and encourages participation in City Council meetings, adopted rules allow no more than 5 minutes (Resolution No. 2007-106) for expression of non- agenda items. Matters under the jurisdiction of the City Council, and not on the posted agenda, may be addressed by the general public; however, California law prohibits the City Council from taking action on any matter which is not on the posted agenda unless it is determined to be an emergency by the City Council. Citizens are entitled to address the City Council on any agenda item subject to the 5-minute provision.
APPOINTMENTS TO BOARDS/COMMISSIONS
C. Appointing Two (2) Members to the Measure “H” Citizens’ Oversight Committee
CONFLICT OF INTEREST DECLARATION
CONSENT CALENDAR
All matters listed on the consent calendar are considered routine in nature and will be enacted by a single motion unless otherwise requested by an individual Councilmember or public for special consideration.
Otherwise, the recommendation of staff will be accepted and acted upon by roll call vote.
1. Clerks Report of Posting. The agenda of the February 13, 2023 City Coun cil Meeting was Posted on Wednesday, February 8, 2023. (City Clerk)
2. Waive Readings. All Readings of Ordinances and Resolutions are Waived. (Waive readings in full of all ordinances and resolutions on the agenda and declare that said titles which appear on the public agenda shall be determined to have been read by title). (City Clerk)
3. Register of Audited Demand(s) Dated January 18, 2023 through February 1, 2023. (Dias)
AGENDA
Regular City Council Meeting
February 13, 2023
4. Approval of Minutes for the January 9, 2023 Special City Council Meeting and Regular City Council Meeting. (City Clerk)
5. Approval of Minutes for the January 23, 2023 Regular City Council Meeting. (City Clerk)
6. Resolution No. 2023-18, Authorizing the City Manager to Approve a Vendor and Vehicle Change to Purchase Orders Executed Under Resolution 2019-104 as Part of the Fleet Replacement Program. (Royal)
7. Resolution No. 2023-19, Approving Local, Federal, and State Retainer Consultant Services Agreements f or General Civil Engineering, Traffic Engineering, Geotechnical Engineering, Architectural a nd Administrative Services, and Authorizing the City Manager to Execute the Agreements. (Waugh)
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. (Royal)
CONSIDERATION OF ITEM(S) REMOVED FROM THE CONSENT CALENDAR
UNFINISHED BUSINESS
None
PUBLIC HEARING
None
NEW BUSINESS
9. Resolution No. 2023-22, 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 . (Hoem)
DISCUSSION ITEMS
None
COUNCILMEMBER REFERRALS
Councilmembers request to have an agenda item placed on a future agenda (p ursuant to Chapter 2 - City Council Meetings, J-8. City Council Referrals/Determination of Items for Agenda).
AGENDA
Regular City Council Meeting
February 13, 2023
REPORTS
At this time, any Councilmembers or City s taff will make an announcement, or report briefly on his /her activities.
• Mayor
• City Council
• City Manager
• City Attorney
• Departments
• County Supervisor
CLOSED SESSION
10. Liability Claims, Cal. Gov. Code §54956.95
Claimant: Emily Rose Padilla
Agency Claimed Against: City of Ceres
11. Public Employee Performance Evaluation, Cal. Gov’t Code §54957(b)(1) Title: City Manager
REPORT FROM CLOSED SESSION
None
ADJOURNMENT
The next regularly scheduled City Council Meeting will be held on February 27, 2023 at 6:00 p.m. in the City Council Chambers located in the Community Center at 2701 Fourth Street, Ceres, CA.
AFFIDAVIT OF POSTING
I, Fallon Martin, City Clerk, for the City of Ceres, declare under penalty of perjury that the foregoing agenda for the Regular City Council Meeting was posted on Wednesday, February 8, 2023, at the following locations in Ceres:
• Community Center Display Case – 2701 Fourth Street
__________________________________________________________________________________________________________________________________________________________ Fallon Martin, City Clerk
AGENDA
Regular City Council Meeting
February 13, 2023
Council Agenda:
The City Council agenda is available for public review on the City’s website at www.ci.ceres.ca.us
and posted at the time and places noted above.
Related Materials:
Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the City Clerk’s Office at City Hall located at 2220 Magnolia Street, Ceres, CA during normal business hours. Persons with questions concerning any agenda item may call the City Clerk’s Office at (209) 538- 5731.
Notice regarding Americans with Disabilities Act:
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting or if you need the agenda and/or the documents in the agenda packet provided in an alternative format, please contact the city clerk’s office at (209) 538- 5731 at least 48 hours prior to the meeting to ensure that reasonable arrangements can be made (28CFR 35.102-35.104 ADA TITLE II).
SB 1383
Compliance
Progress
Update
ITEM B
SB 1383
California’s Short-Lived Climate Pollutant
Reduction Strategy
Senate Bill 1383 (Lara, Chapter 395, Statutes of 2016) passed in 2016 as part of California’s larger strategy to combat climate change. This law is the largest and most prescriptive waste management legislative update in California since AB 939.
The regulation set methane emissions reduction targets for California (SB 1383 Lara, Chapter 395, Statutes of 2016) in a statewide effort to reduce emissions of short-lived climate pollutants (SLCP). The targets must:
• Reduce organic waste disposal 75% by 2025.
• Rescue for people to eat at least 20% of currently disposed surplus food by 2025.
Failure by a local jurisdiction to enact and undertake all SB 1383 responsibilities will result in it being deemed non-compliant and thus subject to fines of up to $10,000 per day. While the State is suggesting that 2022 and 2023 will be non-adversarial years where the State will only provide guidance and technical assistance, the regulations do not preclude fines during this “grace” period ITEM B
SB1383 requires jurisdictions to implement specific actions. • Regulations took effect on Jan. 1, 2022 -Jurisdictions must have had their programs in place on January 1, 2022. • In 2024 Jurisdictions will be required to take enforcement against noncompliant entities. • CalRecycle can begin enforcement actions on jurisdictions and other entities starting on Jan. 1, 2022.
Jurisdiction Requirements
ITEM B
Jurisdiction Responsibilities
Provide Organics Collection
Services to All Residents and
Businesses
Establish Edible Food
Recovery Program Conduct Education and
Outreach to Community
Procure Recyclable and
Recovered Organic
Products
Monitor Compliance
and Conduct Enforcement
Record Keeping
Requirements
ITEM B
Providing Mandatory Organics Collection Services to All Residents and Businesses Jurisdiction Requirement #1
Jurisdictions are required to provide a mandatory organic waste curbside collection service to each of their residents and businesses.
• Each resident and business, must subscribe to an organic waste collection service that either “source- separates” the waste (e.g., separate bins), or transports all unsegregated waste to a facility that recovers 75% of the organic content collected from the system.
• Jurisdictions must have enforceable requirements on its haulers that collect organic waste in the jurisdiction as well as for commercial and residential generators
ITEM B
City Compliance
• 3-Cart Collection Program
Implementation (2020)
• Muni code updated (2021) to include
enforcement and monitoring
stipulations:
An enforcement and penalty program
for collection container contamination
violations
Establish the City as the enforcement
authority for compliance with State
and Federal mandates
• All business customers have a
minimum of 90-gallon organics
cart service. For those that
require more capacity for
organics disposal larger service
levels are available for
additional rate charges.
Residential Customers
Business Customers
ITEM B
Establish a Food Recovery Program AND Secure Access to Recycling and Edible Food Recovery Capacity
Jurisdiction Requirement #2
• Jurisdictions are responsible to implement Edible Food Recovery Programs in their communities. This includes:
o Assessing Capacity of Existing Food Recovery
o Establishing Food Recovery Program (And Expand Existing Infrastructure if necessary) o Inspecting Commercial Generators for Compliance
o Conducting Education and Outreach
• Capacity Planning: Each county will lead this effort by coordinating with the cities, regional agencies, and special districts that provide solid waste collection services in the county to estimate existing, new and/or expanded capacity.
ITEM B
City Compliance
• Contracted Services with
• Stanislaus County is
responsible for leading
capacity planning activities.
The City has and will
continue to work alongside to
provide relevant data and
coordinate annual reporting
metrics and statistical
information to the County.
Establish a Food Recovery
Program
Capacity Planning
ITEM B
Senate Bill 1383: Edible Food Recovery Requirements
Tier 1
● Supermarket
● Grocery store over 10,000 sq ft
● Food service provider
● Food service distributor
● Wholesale food vendor
Tier 2
● Large restaurants -250 seats or
5,000 square feet+
● Hotel with 250+ rooms
● Health care facility with 100+
beds
● Large venue
● Large events
● Local education agency
● Non-local and state entities
Natalie Lessa
Co-Founder, Consultant
ReCREATE Waste Collaborative
ITEM B
Tier 1 and Tier 2 businesses must participate in a food recovery program
1. Donate all edible food that would
otherwise be thrown away
2. Contract with a food recovery
organization/service for donations
3. Maintain records of edible food recovery
including:
Contact information of food
recovery organization/service
Types, quantity (in lbs), and
frequency of food donation
Senate Bill 1383: Edible Food Recovery Requirements
ITEM B
Support Available: Business Assistance
Edible Food Donation Program Support
1. The City has contracted with ReCREATE
to offer free technical assistance to all
Tier 1 generators to establish a food
donation program.
2. ReCREATE is also meeting with each
food recovery organization and service
in the city to identify capacity and
program gaps
3. The City has engaged Careit to provide
a free food donation program app and
tracking system for compliance.
More information about Careit can be found at:
careitapp.com
ITEM B
Free Compliance
Software: Careit
Post Food
Donations
• Download Careit on
iOS or Android
• Designate food as
pick up or self-haul
• Choose specific food
recovery organization
Auto-Generated
Contract
• Careit auto-generates
a downloadable
written agreement
between donor and
nonprofit food
recovery organization
Maintains Records
• Name and address
of each service or
organization
• Food types
donated
• Donation frequency
• Quantity in lbs
ITEM B
Z
Program
Enforcement
Program
Enforcement
SB 1383 requires municipalities to
conduct enforcement activities
● Routine inspections conducted by
the City
● Educational materials will be
provided as well as a notice to
comply.
● Violations may be subject to
administrative civil penalties
Educational flyer provided to businesses
ITEM B
SB 1383 procurement requirements mandate that the city purchases and distributes 3,915 tons of compost annually.
• A jurisdiction can meet their procurement requirements by directly procuring products for use or giveaway.
• SB 1383 also requires that jurisdictions procure recycled-content paper when it is available at the same price or less than virgin material. This applies to Printing and Writing Papers & Paper Products.
Jurisdiction Requirement #3
Procurement
ITEM B
City Compliance
• Working with the local farming community, the city has developed a program to purchase the compost from Recology and allow farmers to pick-up and transport directly from the facility to their operations. This program has allowed the city to exceed its compliance requirements as well as provide an additional resource to local farmers. • Additionally, the City offers residential customers free compost and mulch. Residents can pick up either or both products at River Bluff Regional Park parking lot during the park’s open hours. • The City received a grant for the purchase of the compost product for the first year of the program. Unless the grant program is extended for additional funding cycles or an alternate funding source is identified, the City may incur the costs for future years procurement requirements Compost Procurement and Distribution
ITEM B
Jurisdictions must annually educate all organic waste generators, commercial edible food generators, and self-haulers about relevant requirements
• Jurisdictions must provide print or electronic communication. • Appropriate educational material must be provided to linguistically isolated households Jurisdiction Requirement #4
Education and Outreach
ITEM B
City Compliance
Education & Outreach
Distribution Channels
ITEM B
Jurisdictions are required to have:
• An enforcement mechanism or ordinance in place
• Identify regulated entities in violation and provide educational material • After January 2024, jurisdictions must take progressive enforcement against organic waste generators that are not in compliance.
• Route Reviews of Commercial/Residential Areas to Verify Service and Inspect for Contamination Jurisdiction Requirement #5
Monitoring and Reporting
ITEM B
City Compliance
• Because the City’s organics collection is included in both residential and commercial service rate, the City maintains 100% compliance with this section of SB1383.
• Food recovery program monitoring reporting will utilize the ReCreate and CareIt services for data collection and
consolidation.
• Each program area utilizes specific tracking and program and is reported annually to the State.
Monitoring and Reporting
ITEM B
Jurisdictions are required to maintain records for a multitude of program components. • These include but are not limited to: ordinances, contracts, franchise agreements, tonnage reports, customer and programmatic monitoring data, etc.
Jurisdiction Requirement #6
Recordkeeping
ITEM B
Recordkeeping
Requirements
Jurisdiction
Inspection &
Enforcement
Commercial
Edible Food
Generators
Recycled Paper
Procurement
Recycled
Organic Waste
Procurement
Edible Food
Recovery
Program
Education &
Outreach
Contamination
Minimization
Hauler Program
Organic
Collection
Services
ITEM B
Thank You
Questions?
ITEM B
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: Fallon Martin, City Clerk
[email protected], (209) 538-5731
SUBJECT: Appointing Two (2) Members to the Measure “H” Citizens’ Oversight Committee
RECOMMENDED COUNCIL ACTION:
Staff recommends the City Council appoint two (2) members to the Measure “H” Citizens’ Oversight Committee.
I. BACKGROUND:
Ceres Municipal Code section 3.03.160(B)(2) titled “Establishment of Citizens’ Oversight Committee” states:
“The City Council shall solicit Citizens' Oversight Committee members through an open application process or other process as determined by the City Council. Any Ceres resident is eligible to apply for Committee membership, subject to the appointment categories spec ified above. All applications will be reviewed by the City Council, which will have the authority to make all final decisions on Committee representation, subject to these guidelines.”
The City of Ceres conducted a recruitment for two (2) Measure “H” Citizens’ Oversight Committee vacancies. Both vacancies are partial terms with one ending June 30, 2023 and the other ending June 30, 2025. The notice of vacancies, along with instructions on how to apply were published twice in the Ceres Courier, on the City’s website, and various social media posts were created and shared amongst City department Facebook pages.
At the January 9, 2023 council meeting, council consensus was reached by approving a sub-committee consisting of Mayor Lopez and Councilmember Vierra to serve on the interview panel. The final filing date was Thursday, January 19, 2023 at 5:00 p.m.; however, due to lack of applications received the deadline was extended to Thursday, February 2, 2023 at 5:00 p.m. W ith the extended deadline, there w ere a total of four ITEM C
applications received. All applicants will be interviewed on Monday, February 13, 2023 prior to the Regular City Council Meeting. The applicants that will be interviewed are:
• Randy Cerny
• Deneane Beaulieu
• Angela Huerta
• Davinder Samra
II. REASONS FOR RECOMMENDATION:
Ceres Municipal Code section 3.03.160(B) states, “Members of the Citizens' Oversight Committee shall be appointed by the City Council.”
III. FISCAL IMPACTS:
N/A
IV. EXISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN:
N/A
V. POLICY ALTERNATIVES:
N/A
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
N/A
VIII. ENVIRONMENTAL REVIEW:
N/A
IX. STEPS FOLLOWING APPROVAL:
Once appointments are made, those who are appointed shall comply with the following (within 30 days of appointment) and provide the documentation to the City Clerk’s Office:
• File a Statement of Economic Interests (Form 700)
• Comply with AB 1234 – Ethics Code
Approved by: __________________________
Alex Terrazas, City Manager
ITEM C
ITEM 3
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ITEM 3
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ITEM 3
ITEM 3
ITEM 3
ITEM 3
ITEM 3
ITEM 3
ITEM 3
ITEM 3
ITEM 3
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ITEM 3
DRAFT MINUTES
CITY COUNCIL SPECIAL MEETING
CITY OF CERES, CALIFORNIA
(via ZOOM and in-person)
City Council Chambers, 2701 Fourth Street
Monday, January 9, 2023 at 5:30 p.m.
Mailing Address: Ceres City Hall, 2720 Second Street, Ceres, CA 95307-3292 Phone: (209) 538-5700 Fax: (209) 538-5780
CALL TO ORDER
Mayor Lopez called the January 9, 2023 special meeting to order at 5:30 p.m.
ROLL CALL – Present:
Mayor: Javier Lopez
Vice Mayor: Brett Silveira (District 3)
Councilmembers: James Casey (District 1); Rosalinda L. Vierra (District 2); Daniela A.
Martinez (District 4)
District 1
Councilmember
Casey
District 2
Councilmember
Vierra
District 4
Councilmember
Martinez
District 3
Vice Mayor
Silveira
Mayor Lopez
Present Present Present Present Present
PLEDGE OF ALLEGIANCE
Pledge of Allegiance was led by Mayor Lopez.
CITIZEN COMMUNICATIONS to the Council on items which have been described in the notice of this Special Meeting (five minutes)
None
CLOSED SESSION
Mayor Lopez introduced the Closed Session items.
1. Liability Claims, Cal. Gov. Code §54956.95
City Council meeting was conducted in accordance with Assembly Bill 361, Ceres Resolution 2022-148 and COVID-19 pandemic protocols. This meeting was open to the public with limited capacity seating.
ITEM 4
DRAFT MINUTES
Special City Council Meeting
January 9, 2023
Claimant: Juliana Pendleton-Zamora
Agency Claimed Against: City of Ceres
2. Conference with Legal Counsel – Existing Litigation, Cal. Gov. Code §54956.9 Name of Case: City of Ceres v. Pena, Stanislaus County Superior Court Case No.
CV-22-000383
3. Public Employee Performance Evaluation, Cal. Gov’t Code §54957(b)(1) Title: City Manager
REPORT FROM CLOSED SESSION
Mayor Lopez reported the following:
• Council voted 5/0/0 to deny the liability claim.
• Items 2 and 3 were continued to the Regular City Council meeting.
ADJOURNMENT
The next regularly scheduled City Council Meeting will be held on January 9, 2023 at 6:00 p.m. in the City Council Chambers located in the Community Center at 2701 Fourth Street, Ceres, CA.
There being no further business, Mayor Lopez adjourned the special meeting at 5:5 9 p.m.
_____________________________
Javier Lopez, Mayor
______________________________
Fallon Martin, City Clerk
Consistent with Council Policy, the minutes referenced above are in Action Format. The complete recording of the meeting can be viewed at http://www.ci.ceres.ca.us/ agenda center.
ITEM 4
DRAFT MINUTES
CITY COUNCIL REGULAR MEETING
CITY OF CERES, CALIFORNIA
(via ZOOM and in person)
City Council Chambers, 2701 Fourth Street
Monday, January 9, 2023 at 6:00 p.m.
Mailing Address: Ceres City Hall, 2220 Magnolia Street, Ceres, CA 95307-3292 Phone: (209) 538-5700 Fax: (209) 538-5780
CALL TO ORDER
May
or Lopez called the January 9, 2023 meeting to order at 6:00 p.m.
ROLL CALL – Present:
May
or: Javier Lopez
Vice Mayor: Bret Silveira (District 3)
Councilmembers: James Casey (District 1) ; Rosalinda L. Vierra (District 2); Daniel A.
Martinez (District 4)
District 1
Councilmember
Casey
District 2
Councilmember
Vierra
District 4
Councilmember
Martinez
District 3
Vice Mayor
Silveira
Mayor Lopez
Present Present Present Present Present
INVOCATION
Inv
ocation by Stan Risen, Big Valley Grace.
PLEDGE OF ALLEGIANCE
Pl
edge of Allegiance was led by Mayor Lopez.
AGENDA AMENDMENTS
Ci
ty Attorney, Nubia Goldstein, introduced Amendment #2 to the Regular City Council meeting agenda dated January 9, 2023.
Mayor Lopez asked for public comment. No one spoke.
City Council meeting was conducted in accordance with Assembly Bill 361, Ceres Resolution 2022-148 and COVID-19 pandemic protocols. This meeting was open to the public with limited capacity seating.
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
Mayor Lopez closed public comments.
Action: M otion by Vice Mayor Silveira , seconded by Councilmember Vierra, approving Amendment #2 to the Regular City Council meeting agenda dated January 9, 2023. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
PRESENTATIONS
A. R
ecognize Outgoing Planning Commissioner Laurie Smith
Vice Mayor Silveira presented outgoing Planning Commissioner Laurie Smith with a plaque.
B. Proclamation Recognizing Rocky Fisher
Councilmember Martinez presented Sharon Fisher with a proclamation honoring the life of Rocky Fisher.
C. Incident Management Team Storm Update
Assistant Fire Chief Wise provided an update on the Central Valley Incident Management Team related to the recent storms.
CITIZEN COMMUNICATIONS to the Council on matters not included on the agenda (five minutes)
T
odd Underwood spoke regarding imposing a requirement for police to be required to stop if they see a problem.
Lee Brandt spoke regarding the City’s quick response in cleaning up a tree that fell by his house on New Year's Eve.
Gene Yeakley spoke regarding trees that were planted in new housing developments, positive changes in Code Enforcement response, and training for employees and the community on active shooters.
City Clerk, Fallon Martin, read an email into the record from Alvaro Franco regarding improvements and funding for Tuolumne River Regional Park.
APPOINTMENTS TO BOARDS/COMMISSIONS
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
D. Appointment Process for Appointments to the Measure “H” Citizens’ Oversight Committee
Mayor Lopez introduced the item.
Mayor Lopez recommended Councilmember Vierra and himself to serve on th e interview panel for the Measure “H” Citizens’ Oversight Committee.
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comments.
Concurrence was reached by council approving Mayor Lopez and Councilmember Vierra serve on the interview panel for the Measure “H” Citizens’ Oversight Committee.
E. Appoint a Vice Mayor for a Two-Year Term
Mayor Lopez introduced the item.
Mayor Lopez recommended Councilmember Silveira be appointed as Vice Mayor for a two-year term, ending December 2024.
Mayor Lopez asked for public comment.
Gene Yeakley spoke regarding Rosalinda Vierra being appointed as Vice Mayor.
Mayor Lopez closed public comments.
Action: M
otion by Councilmember Martinez , seconded by Mayor
Lopez, appointing Councilmember Silveira as Vice Mayor for a two-year term, ending December 2024. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
F. Confirmation of the 2023 Mayoral Appointments to Boards, Commissions, and Committees
Mayor Lopez introduced the item.
Mayor Lopez made the recommendation to make the following changes to the “2023 City Council Committee Appointments”:
• Airport Advisory Committee
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
Replace Community Development Director (alternate) with Councilmember Casey (alternate)
• Whitmore House Preservation Committee
Add Councilmember Martinez as an alternate
• West Turlock Subbasin Groundwater Sustainability Agency (JPA) Add Councilmember Casey as an alternate
• Stanislaus Homeless Alliance
Add Councilmember Vierra as an alternate
• Ceres Partnership for Healthy Children
Appoint Councilmember Vierra with Councilmember Martinez as an alternate
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comments.
Action: M
otion by Vice Mayor Silveira , seconded by Councilmember Martinez, confirming the 2023 Mayoral Appointments to Boards, Commissions, and Committees with the above- mentioned
changes. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
CONFLICT OF INTEREST DECLARATION
N
one
CONSENT CALENDAR
C
onsent Calendar items 5, 6, & 7 were removed by Mayor Lopez.
Action: M otion by Councilmember Vierra , seconded by Vice Mayor Silveira, approving items 1-4 and 8-10. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
1. Clerks Report of Posting. The agenda of the January 9, 2023 City Council Meeting was Posted on Thursday, January 5, 2023. (City Clerk)
2. Waive Readings. All Readings of Ordinances and Resolutions are Waived. (Waive readings in full of all ordinances and resolutions on the agenda and declare that ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
said titles which appear on the public agenda shall be determined to have been read by title). (City Clerk)
3. Approval of Minutes for the December 12, 2022 Special City Council Meeting and Regular City Council Meeting. (City Clerk)
4. Register of Audited Demand(s) Dated December 7, 2022 through December 21, 2022. (Dias)
5. Removed for separate consideration.
6. Removed for separate consideration.
7. Removed for separate consideration.
8. Resolution No. 2023-03, Adopting the 2022 Stanislaus County Multi-Jurisdictional Hazard Mitigation Plan Update and City of Ceres Local Hazard Mitigation Plan Annex and Incorporation by Reference into the Health and Safety Element of the City of Ceres General Plan. (Wise)
9. Resolution No. 2023 -04, Approving a Budget Amendment for an Additional Appropriation of $100,000.00 for the Water Meters and Parts Account Budget . (Royal)
10. Resolution No. 2023 -05, Ratifying the Emergency Sewer Repair Services by Mozingo Construction Inc. as Complete, Authorizing Payment to the Contractor, Authorizing the Filing of the Notice of Completion and Releasing Retention to the Contractor. (Waugh)
CONSIDERATION OF ITEM(S) REMOVED FROM THE CONSENT CALENDAR
Item
5: Removed for separate consideration by Mayor Lopez
General Correspondence – Information Only
a. Public Works Monthly Report for November 2022. (Royal)
Mayor spoke regarding his appreciation of the Public Works staff.
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comment.
Councilmember Vierra spoke regarding the Free Community Disposal Day being held on Saturday, February 4, 2023.
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
Action: Motion by Councilmember Martinez, seconded by Vice Mayor Silveira, approving item 5. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
Item 6 : Removed for separate consideration by Mayor Lopez
Resolution No. 2023-01, Approving the Use of ARPA Funds to Purchase One (1) LPR Speed Trailer and Authorizing Staff to Move Forward with the Purchase. (Collins)
Mayor Lopez requested Police Chief Rick Collins provide some information regarding LPR speed trailers.
Police Chief Rick Collins spoke regarding the benefits of LPR speed trailers.
Mayor Lopez asked for public comment.
Gene Yeakley spoke regarding how the information is transmitted to the Police Department.
John Warren spoke regarding the ARPA funds allocated for purchasing LPR speed trailers.
Mayor Lopez closed public comment.
Action: M
otion by Councilmember Martinez, seconded by Vice Mayor Silveira, approving item 6. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
Item 7
: Removed for separate consideration by Mayor Lopez
Resolution No. 2023-02, Ratifying the Appointment of Samir Royal to the Position of Public Works Director, Approving an Employment Agreement, and Authorizing the City Manager to Execute the Agreement. (Vasquez)
Mayor spoke regarding his appreciation of the work performed by Interim Public Works Director Samir Royal.
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comment.
Action: M otion by Vice Mayor Silveira , seconded by Councilmember Vierra, approving item 7. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
UNFINISHED BUSINESS
N
one
PUBLIC HEARING
N
one
NEW BUSINESS
11. R
esolution No. 2023 -06, Proclaiming the Existence of a Local Emergency (subject to four -fifths vote of the City Council pursuant to Cal. Gov. Code §54954.2(b)(1). (City Manager)
City Manager Alex Terrazas spoke regarding the reason for proclaiming the existence of a local emergency.
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comment.
Action: M
otion by Vice Mayor Silveira , seconded by Councilmember Martinez, approving item 11. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
DISCUSSION ITEMS
12. P
icnic Shelter at Smyrna Park. (City Manager)
City Manager Alex Terrazas introduced the item.
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
Lions Club President, Mi ke Borges, spoke regarding Lions Club projects and donations to the City, the future of the covered picnic shelter at Smyrna Park, and their desire to continue collaborating and partnering with the City on future projects.
Greg Scudder spoke regarding projects the Lions Club has done for the City.
Lee Brandt spoke regarding the City’s Corporation Yard’s location.
Council discussion included the continuance of conversations between the City and Lions Club regarding the design of Smyrna Park , the future of the covered picnic shelter, waiting until all citizen review meetings are completed and comments are compiled, relocating the parks corporation yard, and communication to the public.
COUNCILMEMBER REFERRALS
13. C
ouncil to Consider Updating City Council Rules and Procedures. (Mayor Lopez & City Attorney)
Mayor Lopez introduced the item.
City Attorney Nubia Goldstein spoke regarding the idea to update the City Council Rules and Procedures handbook.
Mayor Lopez asked for public comment.
Gene Yeakley spoke regarding updating the City Council Rules and Procedures.
Mayor Lopez closed public comment.
Action: M
otion by Vice Mayor Silveira , seconded by Councilmember Martinez, approving a workshop to be held within 60 days to update the City Council Rules and Procedures. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
REPORTS
At this time, any Council members or City Staff will make an announcement or report briefly on his or her activities.
• M ayor
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
Nothing to report.
• City Council
Councilmember Vierr a provided information for the free small business workshops that are being held in Ceres.
• City Manager
City Manager, Alex Terrazas, provided the phone number for sandbags (209.538.5732).
• City Attorney
Nothing to report.
• Departments
Police Chief Rick Collins spoke regarding Lt. Johnson overseeing Code Enforcement, giving Council a Code Enforcement update in February and an informal swearing- in taking place on Tuesday, January 10, 2023 at 8:30 a.m. in the Council Chambers.
Interim Public Works Director , Sam Royal thanked Council for their compliments to the department, stated the leaf and limb program ending Monday, January 9, 2023, and thanked Public Works staff for their efforts in dealing with the storm.
• County Supervisor
Supervisor Channce Condit congratulated newly elected councilmembers and Lt.
Perry on his recent promotion to Captain and spoke regarding resources during the recent storms.
CLOSED SESSION
14. L
iability Claims , Cal. Gov. Code §54956.95
Claimant: Juliana Pendleton-Zamora
Agency Claimed Against: City of Ceres
15. C onference with Legal Counsel – Existing Litigation, Cal. Gov. Code §54956.9 Name of Case: City of Ceres v. Pena, Stanislaus County Superior Court Case No.
CV-22-000383
16. P ublic Employee Performance Ev aluation, Cal. Gov’t Code §54957(b)(1) Title: City Manager
ITEM 4
DRAFT MINUTES
Regular City Council Meeting
January 9, 2023
REPORT FROM CLOSED SESSION
M
ayor Lopez reported there was no reportable action.
ADJOURNMENT
The next regularly scheduled City Council Meeting will be held on January 23, 202 3 at 6:00 p.m. in the City Council Chambers located in the Community Center at 2701 Fourth Street, Ceres, CA.
T
here being no further business, Mayor Lopez adjourned the meeting at 9:07 p.m.
_____________________________
Javier Lopez, Mayor
____________________________
Fallon Martin, City Clerk
Cons
istent with Council Policy, the minutes referenced above are in Action Format. The complete recording of the meeting can be viewed at http://www.ci.ceres.ca.us/ agenda center.
ITEM 4
DRAFT MINUTES
CITY COUNCIL REGULAR MEETING
CITY OF CERES, CALIFORNIA
(via ZOOM and in person)
City Council Chambers, 2701 Fourth Street
Monday, January 23, 2023 at 6:00 p.m.
Mailing Address: Ceres City Hall, 2220 Magnolia Street, Ceres, CA 95307-3292 Phone: (209) 538-5700 Fax: (209) 538-5780
CALL TO ORDER
Mayor Lopez called the January 23, 2023 meeting to order at 6:00 p.m.
ROLL CALL – Present:
Mayor: Javier Lopez
Vice Mayor: Bret Silveira (District 3)
Councilmembers: James Casey (District 1); Rosalinda L. Vierra (District 2); Daniel A.
Martinez (District 4)
District 1
Councilmember
Casey
District 2
Councilmember
Vierra
District 4
Councilmember
Martinez
District 3
Vice Mayor
Silveira
Mayor Lopez
Present Present Present Present Present
INVOCATION
Invocation by Pastor Tim Giannosa, Big Valley Grace Church.
PLEDGE OF ALLEGIANCE
Pledge of Allegiance was led by Mayor Lopez.
AGENDA AMENDMENTS
City Attorney, Nubia Goldstein, introduced Amendment #1 to the Regular City Council meeting agenda dated January 23, 2023.
Mayor Lopez asked for public comment. No one spoke.
City Council meeting was conducted in accordance with Assembly Bill 361, Ceres Resolution 2022-148 and COVID-19 pandemic protocols. This meeting was open to the public with limited capacity seating.
ITEM 5
DRAFT MINUTES
Regular City Council Meeting
January 23, 2023
Mayor Lopez closed public comments.
Action: Motion by Vice Mayor Silveira , seconded by Councilmember Martinez, approving Amendment #1 to the Regular City Council meeting agenda dated January 23, 2023. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
PRESENTATIONS
None
CITIZEN COMMUNICATIONS to the Council on matters not included on the agenda (five minutes)
John Warren spoke regarding the audio-visual upgrades to the Council Chambers, a tree Public Works staff trimmed on Moffett Road, identification requirements for the free community disposal event and Smyrna Park public outreach.
Gene Yeakley spoke regarding the timing of the Smyrna Park public outreach notice.
APPOINTMENTS TO BOARDS/COMMISSIONS
None
CONFLICT OF INTEREST DECLARATION
Councilmember Vierra declared a conflict of interest on Consent items 8 and 9 and abstained from voting.
CONSENT CALENDAR
Consent Calendar items 8 & 9 were removed by Councilmember Vierra.
Action: Motion by Vice Mayor Silveira , seconded by Councilmember Vierra, approving items 1-7, 10 and 11. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
ITEM 5
DRAFT MINUTES
Regular City Council Meeting
January 23, 2023
1. Clerks Report of Posting. The agenda of the January 23, 2023 City Council Meeting was Posted on Wednesday, January 18, 2023. (City Clerk)
2. Waive Readings. All Readings of Ordinances and Resolutions are Waived. (Waive readings in full of all ordinances and resolutions on the agenda and declare that said titles which appear on the public agenda shall be determined to have been read by title). (City Clerk)
3. Register of Audited Demand(s) Dated January 4, 2023 through January 11, 2023. (Dias)
4. General Correspondence – Information Only
a. Public Works Monthly Report for December 2022 (Royal) b. Semi-Annual Major Project List Report (Waugh)
5. Resolution No. 2023-07 , Authorizing the Second Amendment of the Site Lease Agreement with Verizon Wireless for Use of a Portion of Smyrna Park as a Cellular Radio Communications Facility. (Royal)
6. Resolution No. 2023-08, Approving the Appropriation of $10,000.00 to the Ochoa Park Public Outreach and Authorize City Manager to Release Payment to O’Dell Engineering. (Waugh)
7. Resolution No. 2023-09 , Awarding a Professional Design Services Contract for 2022 Water Main & Service Replacement Project to Black Water Consulting Engineers Inc. and Authorizing the City Manager to Execute the Contract. (Waugh)
8. Removed for separate consideration.
9. Removed for separate consideration.
10. Resolution No. 2023-12, Authorizing the City to Continue Teleconferenced Public Meetings Pursuant to Assembly Bill 361 Allowing the City to Continue a Hybrid Virtual Meeting Environment. (City Clerk)
11. Resolution No. 2023-13, Accepting the Improvements for Ceres Gateway Center as Complete, Accepting the Dedications, Releasing the Improvement Security, Accepting the 12-Month Warranty Bond, and Authorizing Filing of the Notice of Completion. (Hoem)
CONSIDERATION OF ITEM(S) REMOVED FROM THE CONSENT CALENDAR
Item 8 and 9: Removed for separate consideration by Councilmember Vierra
Resolution 2023-10 , Accepting the Subdivision Improvements for Cambridge Estates Phase 2 Subdivision as Complete, Accepting the Dedications, Releasing ITEM 5
DRAFT MINUTES
Regular City Council Meeting
January 23, 2023
the Improvement Security, Accepting the 12-Month Warranty Bond, and Authorizing Filing of the Notice of Completion. (Hoem)
Resolution No. 2023-11 , Stating the Intent and Ordering the Annexation of Cambridge Estates Phase 2 Subdivision to the Landscape and Lighting District and Shall Pay all Appropriate Fees. (Hoem)
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comment.
Action: Motion by Vice Mayor Silveira , seconded by Councilmember Martinez, approving items 8 and 9. Motion carried 4/0/1 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Abstain Yes Yes Yes
UNFINISHED BUSINESS
12. Resolution No. 2023-14, Authorizing the Use of American Rescue Plan Acts Funds and Neighborhood Park Fees for the Design and Construction of Ochoa Park Improvements, Approve the Conceptual Design, and Approve O’Dell Engineering to Perform the Phase II Design Work and Construction Support. (Waugh)
Director of Engineering Services / City Engineer, Kevin Waugh, presented the item.
Mayor Lopez asked for public comment. The following members of the public spoke:
John Warren spoke regarding the funding and costs of various items to be installed as a part of the Ochoa Park improvements.
Mayor Lopez closed public comment.
Council discussion included park drinking fountains, fencing, different versions of the park plans, the process to approve the use of ARPA funds, and the cost of materials.
Action: Motion by Vice Mayor Silveira , seconded by Councilmember Martinez, approving item 12. Motion carried 4/1/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
No Yes Yes Yes Yes
ITEM 5
DRAFT MINUTES
Regular City Council Meeting
January 23, 2023
PUBLIC HEARING
None
NEW BUSINESS
13. Resolution No. 2023-15 , Approving the Regional Surface Water Supply Project Operations Agreement between SRWA, City of Turlock, and City of Ceres and Presenting Progress Report on Regional Surface Water Supply Project. (Royal)
Public Works Director, Samir Royal, introduced the item.
SRWA General Manager, Robert Granberg, gave the presentation.
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comment.
Council discussion included the pipeline capacity, the effects during high water demand, economic impact on Ceres customers, water quality, treatment of surface water, and the quantity of water that will be removed from the Tuolumne River.
Action: Motion by Vice Mayor Silveira , seconded by Councilmember Vierra, approving item 13. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
14. Resolution No. 2023-16, Authorizing the City Manager to Execute the Measure L Regional Control Project Cooperative Agreement with StanCOG for the Right of Way Support Phase of the SR 99/Service Road/Mitchell Road Interchange Project and Approve a Budget Amendment. (Waugh)
Director of Engineering Services / City Engineer, Kevin Waugh, presented the item.
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comment.
Councilmember Casey inquired on the location of the right of way.
Action: Motion by Councilmember Martinez, seconded by Vice Mayor Silveira, approving item 14. Motion carried 5/0/0 by the following roll call vote:
ITEM 5
DRAFT MINUTES
Regular City Council Meeting
January 23, 2023
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
15. Resolution No. 2023-17 , Approving the Mid-Year Budget Amendment for Fiscal Year 2022-2023. (Dias)
Finance Director, Leticia Dias, presented the item.
Mayor Lopez asked for public comment. No one spoke.
Mayor Lopez closed public comment.
Council discussion included the budget process schedule, and clarification on the entries for emergency services and information technology.
Action: Motion by Vice Mayor Silveira , seconded by Councilmember Martinez approving item 15. Motion carried 5/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira
Mayor
Lopez
Yes Yes Yes Yes Yes
DISCUSSION ITEMS
16. Discuss Remote Participation by Elected and Appointed Officials in Public Meetings under AB 2449. (City Attorney)
City Attorney, Nubia Goldstein, presented the item.
Mayor Lopez asked for public comment. The following members of the public spoke:
Gene Yeakley spoke regarding the explanation the City Attorney provided.
Mayor Lopez closed public comment.
Council discussion included participating via Zoom under new and old requirements and a request to bring back a follow-up item on alternatives.
COUNCILMEMBER REFERRALS
New Referral:
(Requested by Councilmember Martinez)
Requested city email addresses for Planning Commissioners.
ITEM 5
DRAFT MINUTES
Regular City Council Meeting
January 23, 2023
REPORTS
Mayor
Mayor Lopez spoke regarding his attendance of the U.S. Mayors Conference in Washington D.C.
City Council
Councilmember Casey congratulated Councilmember Martinez on his Volunteer of the Year award at the Annual Chamber of Commerce Community Service Awards event and also spoke regarding community outreach for the design phase of Smyrna Park.
Councilmember Vierra spoke regarding public attendance at Smyrna Park Community Outreach event, a job fair that is in the works, the Spanish business workshops that are being offered, meeting with the youth commission, and the meeting with Ceres Partners for Healthy Families later in the week.
Vice Mayor Silveira congratulated Councilmember Daniel Martinez on Volunteer of the Year award and Mike Borges on the Citizen of the Year Lifetime Achievement Award.
Councilmember Martinez spoke regarding attending the New Mayors and Council Members Academy and Ceres Youth Baseball registration taking place February 1st.
City Manager
Nothing to report.
City Attorney
Nothing to report.
Departments
Nothing to report.
County Supervisor
Nothing to report.
CLOSED SESSION
None
ITEM 5
DRAFT MINUTES
Regular City Council Meeting
January 23, 2023
REPORT FROM CLOSED SESSION
None
ADJOURNMENT
The next regularly scheduled City Council Meeting will be held on January 23, 2023 at 6:00 p.m. in the City Council Chambers located in the Community Center at 2701 Fourth Street, Ceres, CA.
There being no further business, Mayor Lopez adjourned the meeting at 7:50 p.m.
_____________________________
Javier Lopez, Mayor
______________________________
By Cristina Aguilar, Deputy City Clerk
for Fallon Martin, City Clerk
Consistent with Council Policy, the minutes referenced above are in Action Format. The complete recording of the meeting can be viewed at http://www.ci.ceres.ca.us/ agenda center.
ITEM 5
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: Sam Royal, Public Works Director
[email protected], (209) 538-5717
SUBJECT: Resolution No. 2023-18, Authorizing the City Manager to Approve a Vendor and Vehicle Change to Purchase Orders Executed Under Resolution 2019-104 as Part of the Fleet Replacement Program RECOMMENDED COUNCIL ACTION:
Staff recommends the City Council authorize the City Manager to approve vendor and vehicle changes to prior-year Purchase Orders that were executed under Resolution 2019-104.
I. BACKG
ROUND:
Annually, Departments across the City pay into the Fleet Replacement Program Fund. This fund captures the original purchase price of a vehicle with a 2% inflationary value added annually over the period of ten years. Vehicles are replaced on a ten-year cycle; except for Police Patrol vehicles which are on a seven- year replacement cycle and non-emergency Administrative Pool vehicles which are on a twelve- year replacement cycle. Should a specific Department or Division request a new piece of equipment be added to their fleet, the Fleet Fund typically pays for the upfront purchase of the piece of equipment. In the future budgets, those costs are passed on to that Department for reimbursement of the cost to purchase, and that Department begins to pay its annual replacement fees at that time.
In 2019, Resolution 2019- 104 was approved by Council, authorizing the City Manager to sign purchase orders to Rush Truck Centers of California (“Rush Truck”) as part of the Fleet Replacement Program. Unfortunately, due to the ongoing COVID -19 Pandemic and the depleted inventory nationwide, Rush Truck has been, and still is, unable to deliver five (5) of the vehicles which were budgeted and approved in the Fiscal Year 2020/21 budget.
Because of this, Rush Truck has asked to relinquish their responsibility of delivering these vehicles.
After an exhaustive search, Fleet staff managed to find similar vehicles available for delivery and under the initial budgeted amounts from Downtown Sacramento Ford.
ITEM 6
II. REASONS FOR RECOMMENDATION:
Staff recommends proceeding with the purchases from Downtown Sacramento Ford because they currently have comparable vehicles to the ones initially approved and have submitted quotes which are less than the original budgeted amounts. Downtown Sacramento Ford is a part of the State of California’s Department of General Services – Procurement Division’s contract holder for vehicle purchases, Contract numbers 1- 22-23- 20F and 1- 18-23-20A which ensures the City is paying the lowest and most reasonable price available in the state.
III. F ISCAL IMPACTS :
Sufficient funds have already been c ollected in the FY 2 020/21 Fleet Replacement Program, account 61020.051100.
IV. E XISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN :
This is in accordance with the Government Operations section of the Strategic Plan to “Provide quality services to meet community needs, assuring that the City is sufficiently staffed, trained, and equipped overall”.
V. P
OLICY ALTERNATIVES :
Should the Council decide not to authorize the purchases, the service and maintenance costs, including strict California emissions requirements to maintain aging equipment, will exceed not only the budget Fleet is awarded for repairs, but the value of the vehicles will also continue depreciating until no cost recovery is reasonably expected upon sale.
VI. I
NTERDEPARTMENTAL COORDINATION:
N/A
VII. P UBLIC PARTICIPATION:
N/A
VIII. EN VIRONMENTAL REVIEW :
N/A
IX. STEPS FOLLOWING APPROVAL:
Upon Council approval, the purchase orders previously executed with Rush Truck will be disencumbered, and the City Manager will then execute the purchase orders to Downtown Sacramento Ford.
Approved by: __________________________
Alex Terrazas, City Manager
ITEM 6
Attachments:
1. Resolution 2019-104
2. Resolution 2023-18
3. Previously executed purchase orders (Rush Truck)
4. Quotes from Downtown Sacramento Ford
ITEM 6
ITEM 6
RESOLUTION NO. 2023-18
AUTHORIZING THE CITY MANAGER TO APPROVE A VENDOR AND
VEHICLE CHANGE TO PURCHASE ORDERS EXECUTED UNDER
RESOLUTION 2019-104 AS PART OF THE FLEET REPLACEMENT
PROGRAM
THE CITY COUNCIL
City of Ceres
WHEREAS, departments across the City pay into the Fleet Replacement Program Fund and vehicles are replaced after seven to twelve years of service; and
WHEREAS, Resolution 2019-104 was approved by Council authorizing the replacement of several City vehicles and awarded Purchase Orders to Rush Truck Centers of California; and
WHEREAS, due to the ongoing COVID -19 pandemic and depleted inventory nationwide, Rush Truck Centers of California has been unable to deliver five of the vehicles as promised and has asked to relinquish the responsibility of providing said vehicles; and
WHEREAS, staff was able to locate similar vehicles available for delivery and under the initial budgeted amounts from Downtown Sacramento Ford; and
WHEREAS, Downtown Sacramento Ford is a contract holder with the State of California’s Vehicle Procurement Division, ensuring the City is paying the lowest and most reasonable price available; and
WHEREAS, sufficient funds have already been collected in the fiscal year 2020/21 Fleet Replacement Program Fund in account 60020.051100.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres does hereby authorize the City Manager to approve a vendor and vehicle change to purchase orders executed under Resolution 2019-104 as part of the Fleet Replacement Program.
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 13
th 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 6
ITEM 6
ITEM 6
ITEM 6
ITEM 6
ITEM 6
ITEM 6
ITEM 6
DOWNTOW � SACRAMENTO
S011023 141
REV 1/18/23 525 N16TH STREET, SACRAMENTO, CA 95811
PHONE: 916-299-3529
Customer
Name SCOTT
Address CITY OF CERES
City
Phone
State
Qty Descri
Zip
ption
1 2022 FORD RANGER 4X4 CR
STATE CONTRACT 1-22-23-2
EW CAB PICKUP
OF
1 1
1 1
1 1
1 1
EXTERIOR CO
CLOTH SEATING
2.3L ECOBOOST ENGINE
TRAILER TOW PACKAGE
SYNC
POWER GROUP
SPRAY IN BEDLINER
DOC FEE
EXTRA CARE WARRANTY SY
NON TAXABLE
STOCK UNIT
FD53833
SALES TAX CALCULATED AT
BASED ON REGISTRATION A
Pavment Details
O Cash
@ Check
0 Credit Card
Name
CC#
Expires
LOR: WHITE
R/1 00K MILE/$0 DED
8.375
DDRESS
QUOTE !!!!!!!!!!!!!
ATE 1/18/2023
SALES REP SANDRA
PHONE 9162526260
FOB SACRAMENTO
Unit Price TOTAL -$33,710.00 $33,710.00
$0.00 $0.00
$0.00 $0.00
$511.00 $511.00
$817.00 $817.00
$367.00 $367.00
$595.00 $595.00
$85.00 $85.00
$2,300.00 $2,300.00
SubTotal $38,385.00
DELIVERY $500.00
SALES TAX $3,022.12
CA Tire Tax $8.75
TOTAL $41,915.87
rceUseOnly
7 $500 DISCOUNT WITH PAYMENT IN 20 DAYS
SIGNATURE DATE
ITEM 6
DOWNTO
Customer
Name SCOTT
525 N16TH STREET, SACRAMENTO, CA 95811
PHONE: 916-299-3529
---------------
Address CITY OF CERES
S011023 133
REV 1/18/23
QUOTE !!!!!!!!!!!
ATE 1/18/2023
SALES REP SANDRA
City
Phone
State __ Zip ___ _ PHONE 9162526260
Qty Description -
1 2022 FORD RANGER 4X4 SUPERCAB PICKUP
STATE CONTRACT 1-22-23-20F
EXTERIOR COLOR: WHITE
1 CLOTH SEATING
1 2.3L ECOBOOST ENGINE
1 ALL TERRAIN TIRES
1 ELECTRONIC LOCKING DIFFERENTIAL
1 ALUMINUM WHEELS
1 RUNNING BOARDS
1 CRUISE CONTROL
1 TRAILER TOW PACKAGE
1 POWER GROUP
1 SPRAY IN BEDLINER
1 DOC FEE
1 EXTRA CARE WARRANTY 5YR/1 00K MILE/$0 DED
NON TAXABLE
STOCK UNIT
FD49501
SALES TAX CALCULATED AT 8.375
BASED ON REGISTRATION ADDRESS
Pavment Details
0 Cash
@ Check
Credit Card
Name ------------
CC#
Expires ------
-
FOB SACRAMENTO
Unit Price TOTAL
$31,695.00 $31,695.00
$0.00 $0.00
$0.00 $0.00
$285.00 $285.00
$433.00 $433.00
$449.00 $449.00
$657.00 $657.00
$233.00 $233.00
$511.00 $511.00
$367.00 $367.00
$595.00 $595.00
$85.00 $85.00
$2,300.00 $2,300.00
SubTotal $37,610.00
DELIVERY $500.00
SALES TAX $2,957.21
CA Tire Tax $8.75
TOTAL $41,075.96
!
Office Use Only
$500 DISCOUNT WITH PAYMENT IN 20 DAYS
SIGNATURE DATE
ITEM 6
OOW'NTOWN � SACRAMENTO
5011023 126
525 N16TH STREET, SACRAMENTO, CA 95811
PHONE: 916-299-3529
Customer
Name SCOTT -----------------
Address CITY OF CERES -----=-------=-
City State Zip
Phone
Qty Description
----
1 2022 FORD RANGER 4X4 CREW
--c--c-
C
---,-
AB
=-=-
P�IC
---,-
K�U
-=-
P---
1 1
1 1
1 1
STATE CONTRACT 1-22-23-20F
EXTERIOR COLOR: WHITE
XL T SERIES, FX4 PACKAGE
CLOTH SEATING
2.3L ECOBOOST
ALL TERRAIN TIRES
TRAILER TOW PACKAGE
DOC FEE
EXTRA CARE WARRANTY 5YR/1 00K MILE/$0 DED
NON TAXABLE
STOCK UNIT
FD48496
SALES TAX CALCULATED AT 8.375
BASED ON REGISTRATION ADDRESS
Pavment Details
O Cash
@ Check
0 Credit Card
Name
REV 1/18/23
QUOTE !!!!!!!!!!!
ATE 1/18/2023
SALES REP SANDRA ---
PHONE 9162526260
FOB SACRAMENTO
Unit Price
$33,710.00
$4,002.00
$0.00
$0.00
$285.00
$511.00
$85.00
$2,300.00
-
Sub Total
DELIVERY
SALES TAX
CA Tire Tax
TOTAL
TOTAL
$33,710.00
$4,002.00
$0.00
$0.00
$285.00
$511.00
$85.00
$2,300.00
$40,893.00
$500.00 ·-
$3,232.16
$8.75
$44,633.91
CC#--
Expires ------ :
Office Use Only
$500 DISCOUNT WITH PAYMENT IN 20 DAYS
SIGNATURE DATE
ITEM 6
DOWNTO N � SACRAMENTO
5011023 120
rev 1/18/23 525 N16TH STREET, SACRAMENTO, CA 95811
PHONE: 916-299-3529
Customer
Name SCOTT -----------------
Address CITY OF CERES
City
Phone
- --
Qty
1 1
1 1
1 1
1 1
1 1
State Zip ----
Description
12022 FORD RANGER 4X2 SUPERCAB PICKUP
STATE CONTRACT 1-22-23-20F
EXTERIOR COLOR: WHITE
VINYL SEATING
2.3L ECOBOOST ENGINE
SPLASH GUARDS/MUD FLAPS
TRAILER TOW PACKAGE
BACKUP ALARM
POWER GROUP
SPRAY IN BEDLINER
DOC FEE
EXTRA CARE WARRANTY 5YR/1 DOK MILE/$0 OED
NON TAXABLE
STOCK UNIT
FD41860
SALES TAX CALCULATED AT 8.375
BASED ON REGISTRATION ADDRESS
Pavment Details
0 Cash
@ Check
0 Credit Card
Name
QUOTE �
ATE 1/18/2023
SALES REP SANDRA
PHONE 9162526260
FOB SACRAMENTO
Unit Price TOTAL
$28,238.00 $28,238.00
$0.00 $0.00
$0.00 $0.00
$135.00 $135.00
$511.00 $511.00
$150.00 $150.00
$367.00 $367.00
$595.00 $595.00
$85.00 $85.00
$2,300.00 $2,300.00
SubTotal $32,381.00
DELIVERY $500.00
SALES TAX $2,519.28
CA Tire Tax $8.75
TOTAL $35,409.03
CC# ___________ _
Expires _____ _ I
Office Use Only
$500 DISCOUNT WITH PAYMENT IN 20 DAYS
SIGNATURE DATE
ITEM 6
DOWNTOWN ea SACRA ENTO
01 1023 113
REV 1/18/23
Customer
Name SCOTT
525 N16TH STREET, SACRAMENTO, CA 95811
PHONE: 916-299-3529
------
Address CITY OF CERES
City State Zip
QUOTE !!!!!!!!!!!!
ATE 1/18/2023
SALES REP SAN ORA
PHONE 9162526260 -- ----
Phone
Qty Description
1 2022 FORD F250 4X2 REG CAB PICKUP
STATE CONTRACT 1-18-23-20A
EXTERIOR COLOR: WHITE
1 CLOTH SEATING
1 110V/400W OUTLET
1 SPARE TIRE/WHEEL
1 TRAILER BRAKE CONTROLLER
1 200AMP ALTERNATOR
1 BACKUP ALARM
1 DOC FEE
1 EXTRA CARE WARRANTY 5YR/1 00K MILE/$0 DED
NON TAXABLE
STOCK UNIT
FF42538
SALES TAX CALCULATED AT 8.375
BASED ON REGISTRATION ADDRESS
Pavment Details
0 Cash
@ Check
Credit Card
Name
CC# __ _ -----------
Expires
FOB SACRAMENTO
Unit Price I TOTAL
$40,234.00 $40,234.00-
I
$100.00 $100.00
$176.00 $176.00
$0.00 $0.00
$270.00 $270.00
$0.00 $0.00
$141.00 $141.00
$85.00 $85.00
$2,550.00 $2,550.00
SubTotal $43,556.00
DELIVERY $500.00
SALES TAX $3,434.25
CA Tire Tax $8.75
TOTAL $47,499.00
I
Office Use Only
J
$500 DISCOUNT WITH PAYMENT IN 20 DAYS
SIGNATURE DATE
ITEM 6
ITEM 6
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:
TO:
F
ROM:
CO
NTACT:
SUBJECT:
February 13, 2023
Mayor and City Council
Alex Terrazas, City Manager
Kevin Waugh, P.E., Director of Engineering Services/City Engineer [email protected], (209) 538-5775
Resolution No. 202 3-19, Approving Local, Federal, and State Retainer Consultant Services Agreements f or General Civil Engineering, Traffic Engineering, Geotechnical Engineering, Architectural and Administrative Services, and Authorizing the City Manager to Execute the Agreements
RECOMMENDED COUNCIL ACTION:
S
taff recommends the City Council adopt a resolution approving Retainer Consultant Services Agreements for consultants providing services for General Civil Engineering, Traffic Engineering, Geotechnical Engineering, Architectural, and Administrative Services for local, federal, and state funded projects.
I. BACKGROUND:
It is necessary to have consultants readily available to assist the Engineering Services Department’s staff with the design and administration of Capital Improvement Program (CIP) projects. Consultants provide further resources and expertise necessary for the various types of infrastructure projects completed throughout the year.
In order to comply with California Government Code, Sections 4526- 4529, the City is required to procure professional consultant services on the basis of demonstrated competence and professional qualifications, referred to as Qualifications Based Selection.
In the past, prior to the on- call program, the Request for Proposals (RFP) process had been on a project-by-project basis and typically took two to three months to complete. In 2011, staff initiated a retainer-based approach that has been tremendously successful over the past ten years in helping to deliver CIP projects more effectively.
At this time, we are reco mmending the Consultants listed below be approved to assist in planning, assessing, designing, contracting, and constructing CIP projects.
ITEM 7
Federal and State contracts will be limited to a maximum total compensation of $400,000 to follow Caltrans Local Assistance Guidelines. Contracts also have a term set to expire June 2025, if not further amended by separate resolution.
II. REASONS FOR RECOMMENDATION :
The Retainer Consultant Services agreements have proven to be successful in project delivery and aiding City staff reach our project deadlines. The expertise, additional tools, and organization of our Consultants provides support for the next phase of grow th in the City of Ceres.
The City’s current Retainer Consultant Services agreements will expire June 30, 2023, and the compensation limits on Federal and State contracts have been reached. Existing Federal and State contracts cannot be amended with increasing the compensation limits previously included in the contracts. Until new contracts are in place, planned federal or state funded projects will remain on hold and funds may become in jeopardy.
We recommend offering the following Consultants agreements within their area of expertise:
Federal/State Consultant Services Agreements
General Civil Engineering
• Kjeldsen Sinnock Neudeck (KSN) Inc.
• TL Engineering
• Blackwater Consulting Engineers
• O’dell Engineering
Traffic Engineering
• TL Engineering
• Mott Macdonald
• TJKM
• Advanced Mobility Group (AMG)
Local Consultant Services Agreements
General Civil Engineering
• GDR Engineering
• Kjeldsen Sinnock Neudeck (KSN) Inc.
• TL Engineering
• Blackwater Consulting Engineers
• O’dell Engineering
Traffic Engineering
• TL Engineering
• Mott Macdonald
• TJKM
ITEM 7
• Advanced Mobility Group (AMG)
Geotechnical Engineering
• BSK Associates
• Crawford & Associates Inc.
• Engeo Inc.
• WallaceKuhl & Associates
Architectural
• WMB Architects Inc.
• Red Inc. Architects
Administrative
• Kjeldsen Sinnock Neudeck (KSN) Inc.
III. FISCAL IMPACTS:
Each agreement with the individual Consultant will be consistent with the approved CIP and City Ordinances. The actual encumbrance will be issued via purchase order for each budgeted project.
IV. EXISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN:
This project is in conformance with the first priority of the Strategic Plan to improve the City’s infrastructure.
V. POLICY ALTERNATIVES:
Council can choose to direct staff to use a different process to hire consultants, which will need City Attorney approval.
VI. INTERDEPARTMENTAL COORDINATION:
During the design of the individual projects, the Engineering Services Department will lead coordination with Public Works and other departments, as needed.
VII. PUBLIC PARTICIPATION:
Public participation will be determined on a project-by-project basis. These agreements are to form new contracts with these Consultants.
VIII. ENVIRONMENTAL REVIEW:
Environmental work will be completed prior to any construction project.
IX. ST EPS F OLLOWING APPROVAL:
Finalize and execute the Consultant Services Agreement with each firm.
ITEM 7
Approved by: __________________________
Alex Terrazas, City Manager
Attachments:
1. Resolution
2. Non-Federal Agreement Template
3. Federal/State Agreement Template
ITEM 7
RESOLUTION NO. 2023-19
APPROVING LOCAL, FEDERAL, AND STATE RETAINER CONSULTANT
SERVICES AGREEMENTS FOR GENERAL CIVIL ENGINEERING,
TRAFFIC ENGINEERING, GEOTECHNICAL ENGINEERING,
ARCHITECTURAL AND ADMINISTRATIVE SERVICES, AND
AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENTS
THE CITY COUNCIL
City of Ceres
WHEREAS, the City of Ceres requires General Civil Engineering, Traffic Engineering, Geotechnical Engineering, Architectural Services, Administrative Services; and
WHEREAS, C onsultants provide active support to City staff to deliver Capital Improvement Program projects throughout the year, maintaining Professional Consulting Services on a retainer basis is desired; and
WHEREAS, responses to a Request for Statements of Qualifications were received on July 28, 2022; and
WHEREAS, on the basis of the p roposals received, TL Engineering, O’Dell Engineering, GDR Engineering, Kjeldsen Sinnock Neudeck Inc., Blackwater Consulting Engineers, Crawford & Associates, Engeo Inc., BSK Associates, WallaceKuhl & Associates, Advanced Mobility Group, Mott Macdonald, TJKM, Red Inc. Architects, WMB Architects Inc.; and
WHEREAS, the City Engineer will negotiate with the consultants, the scope of services of individual projects and amend the Retainer Consultant Services Agreement to include the project specific details.
NOW, THEREFORE, BE IT RESOLVED that The City Council of the City of Ceres does hereby approve Local, Federal, and State Retainer Consultant Services Agreements for general civil engineering, traffic e ngineering, geotechnical engineering, architectural and administrative services, and authorizes the City Manager to execute the agreements.
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 7
ITEM 7
-1-
MASTER AGREEMENT FOR
PROFESSIONAL CONSULTANT SERVICES FOR
NON-FEDERAL PROJECTS
THIS AGREEMENT is made this _____ day of ____________, 20 23, by and between the CITY OF CERES, a municipal corporation, hereinafter referred to as "CIT Y", and _______________, a professional consulting firm, hereinafter referred to as "CONSULTANT".
RECITALS:
A. CITY has completed a Request for Qualifications (RFQ) process to select qualified professional consulting firms to perform services for the CITY on an as needed basis for various engineering specialties.
B. CONSULTANT was one of the professional consulting firms selected by the CITY.
1. TERM
The term of this Master Agreement shall commence upon its execution by the parties and shall expire on June 30, 2025. If the Master Agreement is not extended, the terms and conditions of the Master Agreement will stay in effect until the satisfactory completion of the services as agreed to in the specific Project Agreements as further delineated herein.
2. AWARD OF PROJECTS
During the term of this Master Agreement, and any extension thereof, the CITY will from time-to-time submit a preliminary scope of services for selected projects to each of the consulting firms selected to contract with the CITY. CO NSULTANT will, as requested by the City Engineer, submit a scope of services, schedule and price for the project. The City Engineer will make the final determination regarding the award of the project and CONSULTANT will, within five (5) days of the Notic e of Award , execute and deliver to the CITY the Project Agreement in the form shown on ATTACHMENT 1.
3. COMPLIANCE WITH LAW
CONSULTANT shall use due professional care to provide that services rendered hereunder shall be provided in accordance with all applicable ordinances, resolutions, statutes, ITEM 7
-2-
rules, and regulations of the CITY and any Federal, State, or local governmental agency having jurisdiction in effect at the time service is rendered.
Should the CITY discover a violation of any of the applicable ordinances, resolutions, statutes, rules or regulations referred to in this paragraph 2, the CITY shall give written notice of such violation to CONSULTANT, and CONSULTANT shall have a reasonable time to cure such violation.
Should a conflict arise between any of the various ordinances, resolutions, statutes, rules and regulations, CONSULTANT shall advise the CITY of such conflict, and the parties shall mutually agree upon a resolution of such conflicts.
4. 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 Agreement, and shall indemnify, defend and hold harmless CITY against any such fees, ass essments, taxes, penalties, or interest levied, assessed, or imposed against CITY hereunder.
5. FAMILIARITY WITH WORK
By executing this Master Agreement, CONSULTANT agrees that with regard to any Project Agreement, the CONSULTANT: (a) will investigate and consider the scope of serv ices to be performed; (b) carefully consider how t he services should be performed; and, (c) fully understand the facilities, difficulties, and restrictions attending performance of the services of any project for which a proposal is requested. If services involve work upon any site, CONSULTANT will investigate the site and will be fully acquainted with the conditions that exist prior to commencement of services on the project . Should the CONSULTANT discover any latent or unknown conditions which will materially affect the performance of the services on the project , CONSULTANT will 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.
ITEM 7
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6. FURTHER RESPONSIBILITIES OF PARTIES
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Master Agreement and any Project Agreement . Both parties agree to act in good faith to execute all i nstruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of said Agreements. Unless hereafter specified, neither party shall be responsible for the service of the other.
7. 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 or der is first given by the Contract Officer to the CONSULTANT, incorporating therein any adjustment in (i) the Contract Su m, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the CONSULTANT. It is expressly understood by CONSULTANT that the provisions of this section shall not apply to services specifically set forth in the Scope of Services for any Project Agreement or rea sonably contemplated therein.
CONSULTANT hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services for any Project Agreement may be more costly or time consuming than CONSULTANT anticipates and that CONSULTANT shall not be entitled to additional compensation, therefore.
8. TERM OF PROJECT AGREEMENT
Any Project 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 Master Agreement.
9. COMMENCEMENT OF SERVICES
CONSULTANT shall not undertake any work or incur any costs whatsoever under any Project Agreement except upon the prior receipt of a fully e xecuted 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.
ITEM 7
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10. PROJECT COMPENSATION
CONSULTANT agrees to accept the sum stated in the Project Agree ment as full remuneration for performing all services and furnishing all staffing and materials for the work in accordance with Scope of Services contained in the Project Agreement.
For each Project Agreement, unless otherwise agreed to by both parties , compensation shall be paid pursuant in the manner at the times set forth below:
CITY shall pay C ONSULTANT on a time and materials or lump sum basis for CONSULTANT’S actual costs for all services called for in the Scope of Services. All work to be performed shall be billed at the lower of the hourly rates provided by the CONSULTANT in their July 2022 Proposal in response to the City’s RFQ or as set forth in the Project Agreement.
CONSULTANT shall submit monthly invoices to CITY which include detailed tasks , h ours worked, and billable rates for all work completed, a nd detailed receipt for any out -of-pocket costs paid by C ONSULTANT in connection with work performed on th e project.
CONSULTANT shall be paid within thirty (30) days of receipt by the CITY of a p roperly prepared invoice.
11. TIME OF ESSENCE
Time is of the essence in the performance of any Project Agreement.
12. SCHEDULE OF PERFORMANCE
CONSULTANT shall perform all services within the times set forth in the Project Agreement.
13. FORCE MAJEURE
The time period(s) specified in any Project Agreement for performance of the services rendered shall be extended because of any delays due to unforeseeable causes beyond the reasonable control of CONSULTANT and without the fault or negligence of CONSULTANT, including but not limited to severe weather, fires, eart hquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the CITY, if the CONSULTANT 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 t he enforced delay when and if in the judgment of the ITEM 7
-5-
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 CONSULTANT be entitled to recover damages against the CITY for any delay in the performance of thi s Agreement, however caused, CONSULTANT’S sole remedy being extension of the Agreement pursuant to this Section.
14. OBLIGATIONS OF CONSULTANT
Throughout the term of this Master Agreement, CONSULTANT shall possess, or secure all licenses, permits, qualif ications and approvals legally required to conduct business.
CONSULTANT agrees that it 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 services contemplated by this Master Agreement, and any specific Project Agreement .
CONSULTANT further agrees that it will reasonably follow the current, generally accepted and professional practices to make findings, render opinions, prepare factua l presentations, and provide professional advice and recommendations regarding any project. These reviews shall be performed by senior personnel experienced in the areas necessary to perform the reviews and capable of making appropriate recommendations for modifications, as necessary.
15. PROJECT MANAGER
CONSULTANT will assign a Project Manager, who will be the person primarily responsible for the performance of the services referred to in any P roject Agreement. Said person shall not be replaced without the consent of CITY, which consent will not be unreasonably withheld.
16. CONTRACT OFFICER
The City Engineer will assign a Contract Officer for the services performed under any Project Agreement. It shall be the CONSULTANT’S responsibility to assure th at 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 o therwise 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 any Project Agreement.
ITEM 7
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17. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT
The experience, knowledge, capability, and reputation of CONSULTANT, its principals, and employees were a substantial inducement for the CITY to enter into this Master 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 CITY. In addition, neither this agreement nor any interest herein may be transferred, a ssigned, 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. Transfers restricted hereunder shall include the transfer to any person or gr oup and/or control of CONSULTANT, taking all transfers into account on a cumulative basis. 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 rele ase the CONSULTANT or any surety of CONSULTANT of any liability hereunder without the express consent of CITY.
18. OWNERSHIP OF DOCUMENTS/TITLE TO DATA
Ownership of Documents
All electronic and hard copies of reports, drawings, designs, graphics, workin g pa pers 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. No reports shall be used by CONSULTANT for purposes other than this contract without the express prior written consent of CITY.
Any use of the work product for other project(s) without specific written authorization from CONSULTANT will be at CITY’S sole risk and without liability to CONSULTANT.
Further, any and al l li ability arising out of changes made to, or reuse of, CONSULTANT’S deliverables under this Agreement by CITY or persons other than CONSULTANT is waived as against CONSULTANT and CITY assumes full responsibility for such changes unless CITY has given CONSULTANT prior notice and has received from CONSULTANT written consent for such changes.
ITEM 7
-7-
Title to Data
If, as a part of any Project Agreement, CONSULTANT is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related m aterials, the originals of final data generated under this Agreement will be delivered to CITY upon the completion of the project, termination of services , or when requested by City.
All materials, documents, data or information obtained from CITY data files or any CITY medium furnished to CONSULTANT in the performance of any Project 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 any Project Agreement without written consent of CITY.
19. INTEREST OF CONSULTANT
CONSULTANT 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 Master Agreement, or any Project Agreement .
CONSULTANT warrants that, in performance of any Project Agreement, CONSULTANT shall not employ any pe rson 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.
20. REPORTS
CONSULTANT shall periodically prepare and submit to th e Con tract Officer such reports concerning the performance o f the services required by any Project Agreement as the Contract Officer shall require. CONSULTANT thereby acknowledges that the CITY is greatly concerned about the cost of work and services to b e per formed pursuant to any Project Agreement. For this rea son, CONSULTANT agrees that if CONSULTANT becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemp lated therein, CONSULTANT shall promptly notify the Contract Officer of said fact, circumstance, technique or event.
ITEM 7
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21. RECORDS
CONSULTANT shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the serv ices required by any Project Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall always have full and free access to such books and records during normal business hours of CITY, including the right to inspect, copy, audit, and make records and tran scripts from such records.
Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the CITY shall have access to such records in the event any au dit is required.
22. AMENDMENTS
Both parties to this Master Agreement understand that it may become desirable or necessary during the performance of any Project Agreement, for CITY or CONSULTANT to modify the scope of services provided for under any Project 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 contract prior to the performance of the additional work.
Until an amendment is so executed, CITY will not be respon sible to pay any charges CONSULTANT may incur in performing such additional services, and CONSULTANT shall not be required to perform any such additional services.
23. INDEPENDENT CONTRACTOR
All acts of CONSULTANT, his agents, officers, and employees and all others acting on behalf of CONSULTANT relating to the performance of this Master Agreement, and any Project Agreement shall be performed as independent contractors and not as agents, officers, or employees of CITY. CONSULTANT, by virtue of this Agreem ent, 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 un derstood 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.
ITEM 7
-9-
CONSULTANT, his agents, officers and employees are and, at all ti mes during the term of this Master Agreement, shall represent and conduct themselves as independent contractors and not as employees of CITY.
CONSULTANT shall determine the method, details and means of performing the work and services to be provided by CONSULTANT under any Project Agreement. CONSULTANT shall be responsible to CITY only for the requirements and results specified in any Project Agreement and, except as expressly provided in any Project Agreement, shall not be subjected to CITY'S control wit h respec t to the physical action or activities of the CONSULTANT in fulfillment of any Project Agreement. CONSULTANT has control over the manner and means of performing the services. CONSULTANT is permitted to provide services to others during the same period service is provided to CITY. If necessary, CONSULTANT has the responsibility for employing other persons or firms to assist CONSULTANT in fulfilling the terms and obligations under any Project Agreement.
If in the performance of any Project Agreement any t hird persons are employed by CONSULTANT, such persons shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. All terms of employment including hours, w ages, w orking conditions, discipline, hiring, and discha rging or any other term of employment or requirement of law shall be determined by the CONSULTANT.
It is understood and agreed that as an independent contractor and not an employee of CITY neither the CONSULTANT nor CONSULTANT'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.
It is further understood and agreed tha t CONSULTANT must issue W -2 forms or other forms as required by law for income and employment tax purposes for all of CONSULTANT'S personnel.
As an independent contractor, CONSULTANT hereby indemnifies, defends and holds CITY harmless from any and all cl aims th at may be made against CITY based upon any contention by any third party that an employer -employee relationship exists by reason of this Agreement.
ITEM 7
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24. NOTICES
Any and all notices permitted or required to be given hereunder shall be deemed duly given a nd effective (1) upon actual delivery, if deliver y 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 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: Name: _____________________________
Address: ___________________________
___________________________
Attention: __________________________
Phone: ___________________________
FOR CITY: Name: CITY of Ceres
Address: 2220 Magnolia St.
Ceres, CA 95307
Attention: Kevin Waugh, City Engineer
Phone: (209) 538-5775
25. INSURANCE REQUIREMENTS
Insurance shall be provided as specified in Exhibit “A”.
26. TERMINATION OF AGREEMENT
Termination on Occurrence of Stated Events
Any Project Agreement shall terminate automatically on the date on which any of the following events occur: (1) bankruptcy or insolvency of CONSULTANT, or (2) legal dissolution of CONSULTANT, unless the CITY consents in writing to the continuation of the Project Agreement.
ITEM 7
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Termination by CITY for Default of CONSULTANT
Should CONSULTANT default in the performance of any Project Agreement or materially breach any of his provisions, at its option CITY may terminate any Project Agreement by giving written notification to CONSULTANT. The termination date shall be the effective date of the notice. Except for a material breach of any Project Agreement resulting from the CONSULTANT’S willful destruction of CITY'S property, dishonesty or thef t, the CITY w ill give the CONSULTANT 30 days notice to correct failure to perform required services or default in performance prior to executing a written notice of termination.
Termination by CONSULTANT for Default of CITY
Should CITY default in the per formance of any Project Agreement or materially breach any of its provisions, at his /its option CONSULTANT may terminate any Project 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 any Project Agreement shall include but not be limited to any of the f ollowing: failure to pay CONSULTANT as hereafter provided , willfu l destruction of CONSULTANT'S property by CITY, dishonesty or theft.
Termination by CITY for Lack of Budgeted Funds
CITY may terminate this Master Agreement, effective July 1 of any given year upon CITY'S d etermination to not appropriate sufficie nt funds for this Master Agreement for the ensuing fiscal year. In such event , CITY shall give CONSULTANT not less than 30 days written notice.
Termination for Failure to Make Agreed-Upon Payments
Should CITY fail to pay CONSULTANT all or any part of t he payments set forth in any Project Agreement on the date due, at his option CONSULTANT may terminate any Project Agreement if the failure is not remedied within thirty (30) days after CONSULTANT notifies CITY in writing of such failure to pay. The termi nation date shall be the effective date of the notice.
Termination by CITY for Change of CONSULTANT'S Tax Status If CITY determines that CONSULTANT does not meet the requirements of federal and state tax laws for independent contractor status, CITY may terminate this Master Agreement and ITEM 7
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any Project Agreement by giving written notice to CONSULTANT. The termination date shall be the effective date of the notice.
Voluntary Termination
The parties may terminate any Agreement upon mutual written Agreement.
In the Event of Termination
If any Project Agreement is terminated pursuant to this Paragraph, CONSULTANT 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, CONSULTANT shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONSULTANT’S work on the project.
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 any Project Agreement is terminated pursuant to any of the subsections contained in this paragraph, CITY will pay CONSULTANT an amount b ased on the percentage of work completed on the termination date, this percentag e shall be determined by CITY in its sole discretion. If any Project Agreement is terminated pursuant to the subparagraph entitled Termination by CITY for Default of CONSULTANT, CONSULTANT understands and agrees that CITY may, in CITY'S sole discretion, r efuse to pay CONSULTANT for that portion of CONSULTANT'S services which were performed by CONSULTANT on the project prior to the termination date and which remain unacc eptable and/or not useful to CITY as of the termination date.
27. INDEMNITY
CONSULTANT shall indemnify, defend and hold harmless CITY and its officers, officials and employees from and against al l claims, damages, losses and expenses including reasonable attorney fees arising out of the performance of the work described herein, to the extent caused in whole or in part by any negligent act or omission of the CONSULTANT, or any agent or employee of the CONSULTANT, except where caused by the active negligen ce, sole negligence, or willful misconduct of the CITY.
CONSULTANT'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 ITEM 7
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any requirem ent in t his Agreement for CONSULTANT to procure and maintain a policy of insurance.
28. PREVAILING WAGES/CERTIFIED PAYROLL REQUIREMENT
Should the performance of the services required by any Project Agreement involve the provision of field work, CONSULTAN T is advised that compliance with California Labor Code Sections 1720 – 1781 regarding t he payment of prevailing wages is required, including the obligation to comply with the provisions of Section 1776 of t he Labor Code regarding payroll records. These p rovisions apply equally to the CONSULTANT and its subcontractors, and CONSULTANT shall require that its sub consultants and subcontractors comply with the Labor Code provisions.
29. RETENTION OF FUNDS
CONSULTANT hereby authorizes CITY to deduct from any a mount pa yable to CONSULTANT (whether or no t arising out of any Project Agreement): (i) a ny amounts the payment of which may be in dispute hereunder or which are necessary to compensate CITY for any losses, costs, liabilities, or damages suffered by CITY; and, (ii) all amounts for which CITY may be liable to third parties, by reason of CONSULTANT’S acts or omissions in performing or failing to perform CONSULTANT’S obligation under any Project Agreement. In th e event that any claim is made by a third party, the amou nt or validity of which is dispute d by CONSULTANT, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, CITY may withhold from any payment due, without lia bility for interest because of such withholding, an amount sufficient to cover such claim. The failure of CITY to exercise such right to deduct or to withhold shall not, however, affect the obligations of the CONSULTANT to insure, indemnify, and protect CITY as elsewhere provided herein.
30. ENTIRE AGREEMENT
This Master Agreement and any Project Agreement and their respective exhibits contain the entire understanding between CONSULTANT and CITY. Additional or new terms contained in this Master Agreement and any Project Agreement which vary from any CONSULTANT'S proposal are controlling and are deemed accepted by CONSULTANT upon commencement of pe rformance hereunder. All previous proposals, offers and communications relative to this Master Agreement and any Project Agreement, whether oral or written, are hereby ITEM 7
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superseded except to the extent that they have been incorporated into this Master Agreement and any Project Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Master Agreement and any Project Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
31. PARTIAL INVALIDITY
If any provision in this Master Agreement or any Project Agreement are held by a court of competent jurisdiction to be invalid, void, or unenforcea ble, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
32. WAIVER
The waiver by any party to this Master Agreement, or any Project Agreement of a breach of any provision thereof shall be i n writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
33. AUDIT
CITY'S duly authorized representative shall ha ve access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify CONSULTANT'S charges to CITY under any Project Agreement.
CONSULTANT agrees to retain reports, records, doc uments, and files related to charges under any Project Agreement for a period of three (3) years following the date of final payment for CONSULTANT services. CITY'S representative shall have the right to reproduce any of the aforesaid documents.
34. GOVERNING LAW
This Master Agreement and any Project Agreem ent shall be construed and interpreted both as to validity and to performance of the p arties in accordance with the laws of the State of California. The parties agree that as a condition precedent to the co mmencement of litigation under either the Master Agreement or any Project Agreement , they shall submit the matter to non-binding mediat ion administered by the American Arbitration Association under its construction industry mediation rules, unless waived by mutual stipulation of both parties. Legal actions concerning any dispute, claim, or matter arising out of or in relation to said Agreements not settled by mediation 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 ITEM 7
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covenants and agrees to submit to the personal jurisdiction of such c ourt in the event of such action.
35. HEADINGS NOT CONTROLLING
Headings used in th is Master Agreement and any Project A greement are for reference purposes only and shall not be considered in construing said Agreements.
36. CITY BUSINESS LICENSE
CONSULTANT will have a CITY of Ceres business license, as required.
37. ATTORNEYS’ FEES
If either party to this Master Agreement and any Project Agreement is required to i nitiate or defend or is made a party to any action or proceeding in a ny way connected with this Master Agreement or any Project Agreement , the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether lega l or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees sha ll include attorneys’ fees on any appeal, and in addition a party entitled to attorneys’ fees shall be entitled t o all oth er 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 actio n and sha ll 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
By________________________________
Signature
Alex Terrazas, City Manager____
Name and Title
CONSULTANT
By_______________________________
Signature
_________________________________
Name and Title
APPROVED AS TO FORM
__________________________________
CITY ATTORNEY
CONSULTANT’s Federal ID #
__________________________________
ATTEST:
_____________________________________
Fallon Martin, City Clerk
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EXHIBIT “A”
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 Commer cial General Liability coverage (O ccurrence Form CG 0001).
2. Insurance Services Office Form Number 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.
4. Errors and Omissions Liability insurance appropriate to the CONSULTANT’S profession.
Minimum Limits of Insurance
CONSULTANT shall maintain limits no less than:
1. General Liability (Including operations, products and complet ed operations as applicable.):
$2,000,000 per occurrence for bodily injury, personal injury and property damage. If Comme rcial General Liability
insurance or other fo rm w ith a general ag gregate
limit is used, either the general aggregate limit shall apply separately to this pr oject/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. Employer’s Liability:
$2,000,000 per accident for bodily injury or disease.
4. Errors and Omissions Liability:
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$2,000,000 per claim and aggregate.
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. At the option of the entity, either (a) the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the entity, it s officers, officials, employees and volunteers or (b) the consultant shall provide a fi nancial guarantee satisfactory to the entity guaranteeing payment of losses and related investigations, clam administration and defense expenses.
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 a s ins ured’s as respects: liability arising ou t of work or operations performed by or on behalf of the CONSULTANT; or automobiles owne d, leased, hired or bor rowed by the CONSULTANT.
2. For any claims related to this project, the CONSULTANT’S insurance coverag e shall be primary insurance as respects the Entity, its officers , officials, employees.
Any insurance or self -insurance maintained b y the entity, its offic ers, officials, employees or volunteers shall be excess of the CONSULTANT’S insurance and shall not contribute with it.
3. Each insurance policy req uired by this clause shall be endorsed to state that coverage shall not be canceled by e ither party, except aft er thirty (30) days’ prior written notice by mail has been given to the entity.
4. Coverage shall not extend to any indemnity coverage for the activ e negligence of the additional insured in any case where an agreement to indemnify the a dditional insured would be invalid under Subdivision (b) of section 2782 of the Civil Code.
If General liability, Contrac tors Pollution Liability and/or Asbestos Poll ution 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 insur ance must be provide d for at least three (3) years after completion of the contract of work.
3. If coverage is ca nceled or non -renewed, and not replaced with another claims - made policy form with a retroactive date prior t o the contract effective date, the Contractor must purcha se an extended period coverage for a minimum of three (3) years after completion of contract work.
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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 l ead-based paint or asbe stos 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 an d endorsements, includi ng amendatory endorsements, effecting coverage required by this clause. The endorsements should be on fo rms provided by the Entity or on other t han the Entity’s for ms, 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 ins urance policies, inc luding endorsements effecting the coverage required by these specifications at any time.
Waiver of Subrogation
CONSULTANT her eby agrees to waive subrogation, which any insurer of contractor may acquire from vendor by virtue of the pay ment of any loss. C ONSULTANT 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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MASTER AGREEMENT FOR
PROFESSIONAL CONSULTANT SERVICES FOR
FEDERAL & STATE-FUNDED PROJECTS
THIS AGREEMENT is made this _____ day of ____________, 20 23, by and between the CITY OF CERES, a municipal corporation, hereinafter referr ed to as "CITY", and _______________, a professional consulting firm, hereinafter referred to as "CONSULTANT".
RECITALS:
A. CITY has completed a Request for Qualifications (RFQ) process to select qualified professional consulting firms to perform services for the CITY on an as needed basis for various engineering specialties.
B. CONSULTANT was one of the professional consulting firms selected by the CITY.
1. TERM
The term of this Master Agreement shall commence upon its execution by the parties and shall expire on June 30, 2025. If the Master Agreement is not extended, the terms and conditions of the Master Agreement will stay in effect until the satisfactory completion of the services as agreed to in the specific Project Agreements as further delineated herein.
2. AWARD OF PROJECTS
During the term of this Master Agreement, and any extension thereof, the CITY will from time-to-time submit a preliminary scope of services for selected projects to each of the consulting firms selected to contract with t he CITY. CONSULTANT will, as requested by the City Engineer, submit a scope of services, schedule and price for the project. The City Engineer will make the final determination regarding the award of the project and CONSULTANT will, within five (5) days of the N otice of Award , execute and deliver to the CITY the Project Agreement in the form shown on ATTACHMENT 1.
3. COMPLIANCE WITH LAW
CONSULTANT shall use due professional care to provide that services rendered hereunder shall be provided in accordance with all applicable ordinances, resolutions, statutes, ITEM 7
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rules, and regulations of the CITY and any Federal, State, or local governmental agency having jurisdiction in effect at the time service is rendered.
Should the CITY discover a violation of any of the applicable ordinances, resolutions, statutes, rules or regulations referred to in this paragraph 2, the CITY shall give written notice of such violation to CONSULTANT, and CONSULTANT shall have a reasonable time to cure such violation.
Should a conflict a rise bet ween any of the various ordinances, resolutions, statutes, rules and regulations, CONSULTANT shall advise the CITY of such conflict, and the parties shall mutually agree upon a resolution of such conflicts.
4. 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, assessmen ts 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 Agreement, and shall indemnify, defend and hold harmless CITY against any su ch fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against CITY hereunder.
5. FAMILIARITY WITH WORK
By executing this Master Agreement, CONSULTANT agrees that with regard to any Project Agreement, the CONSULTANT: (a) will investigate and consider the scope of serv ices to be performed; (b) carefully consider how t he services should be performed; and, (c) fully understand the facilities, difficulties, and restrictions attending performance of the services of any project for whic h a prop osal is requested. If services involve work upon any site, CONSULTANT will investigate the site and will be fully acquainted with the conditions that exist prior to commencement of services on the project . Should the CONSULTANT discover any latent or unknown conditions which will materially affect the performance of the services on the project , CONSULTANT will 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.
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6. FURTHER RESPONSIBILITIES OF PARTIES
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Master Agreement and any Project Agreement . Both parties agree to act in good faith to e xecute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of said Agreements. Unless hereafter specified, neither party shall be responsible for the service of the other.
7. 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 Su m, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the CONSULTANT. It is expressly understood by CONSULTANT that the provisions of this section shall not apply to services specifically set forth in the Scope of Services for any Project Agreement or rea sonably contemplated therein.
CONSULTANT hereby acknowledges tha t it acc epts the risk that the services to be provided pursuant to the Scope of Services for any Project Agreement may be more costly or time consuming than CONSULTANT anticipates and that CONSULTANT shall not be entitled to additional compensation therefore.
8. TERM OF PROJECT AGREEMENT
Any Project 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 Master Agreement.
9. COMMENCEMENT OF SERVICES
CONSULTANT shall not undertake any work or incur any costs whatsoever under any Project 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.
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10. PROJECT COMPENSATION
CONSULTANT agrees to accept the sum stated in the Proj ect Agre ement as full remuneration for performing all services and furnishing all staffing and materials for the work in accordance with Scope of Services contained in the Project Agreement. The total compensation paid to CONSULTANT for all projects awarde d to CON SULTANT under this Maste r Agreement shall not exceed four-hundred thou sand ($400,000.00) without further approval of the Ceres City Council.
For each Project Agreement, unless otherwise agreed to by both parties , compensation shall be paid pursuant in the manner at the times set forth below:
CITY shall pay C ONSULTANT on a time and materials or a lump sum basis for CONSULTANT’S actual costs for all services called for in the Scope of Services. All work to be performed shall be billed at the lower of the hourly rates provided by the CONSULTANT in their July 2022 Proposal in response to the City’s RFQ or as set forth in the Project Agreement.
CONSULTANT shall submit monthly invoices to CITY which include detailed tasks, hours worked, and billable rates for all wor k comple ted, and detai led receipt for any out -of-pocket costs paid by C ONSULTANT in connection with work performed on th e project.
CONSULTANT shall be paid within thirty (30) days of receipt by the CITY of a properly prepared invoice.
11. TIME OF ESSENCE
Time is of the essence in the performance of any Project Agreement.
12. SCHEDULE OF PERFORMANCE
CONSULTANT shall perform all services within the times set forth in the Project Agreement.
13. FORCE MAJEURE
The time period(s) specified in any Project A greement for performance of the services rendered shall be extended because of any delays due to unforeseeable causes beyond the reasonable control of CONSULTANT and without the fault or negligence of CONSULTANT, including but not limited to severe weathe r, fires , earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the CITY, if the CONSULTANT shall within ten (10) days of the ITEM 7
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commencement of such del ay 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 th e judgment o f 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 CONSULTANT be entitled to recover damages against the CITY for any delay in the performance of this Agreement, however caused, CONSULTANT’S sole remedy being extension of the Agreement pursuant to this Section.
14. OBLIGATIONS OF CONSULTANT
Throughout the term of this Master Agreement, CONSULTANT shall possess, or secure all licenses, pe rmits, q ualifications and approvals legally required to conduct business.
CONSULTANT agrees that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources nece ssary to pro vide CITY with the se rvices contemplated by this Master Agreement, and any specific Project Agreement .
CONSULTANT further agrees that it will reasonably follow the current, generally accepted and professional practices to make findings, render opinions, p repare f actual presen tations, and provide professional advice and recommendations regarding any project. These reviews shall be performed by senior personnel experienced in the areas necessary to perform the reviews and capable of making appropriate recommendations for modifications, as necessary.
15. PROJECT MANAGER
CONSULTANT will assign a Project Manager, who will be the person primarily responsible for the performance of the services referred to in any Project Agreement. Said person shal l not be rep laced wi thout the co nsent of CITY, which consent will not be unreasonably withheld.
16. CONTRACT OFFICER
The City Engineer will assign a Contract Officer for the services performed under any Project Agreement. 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 a pproval of CITY required hereund er shall mean the ITEM 7
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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 any Project Agreement.
17. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT
The experience, knowledge, capability, and reputation of CONSULTANT, its principals, and employees were a substantial inducement for the CITY to enter into this Master 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 CITY. In addition, neither this agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered v oluntarily or by op eration of law, whether for the benefit of creditors or otherwise, without the prior written approval of CITY. Transfers restricted hereunder shall include the transfer to any person or group and/or control of CONSULTANT, taking all tra nsfers i nto account on a cumulative basis. 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.
18. OWNERSHIP OF DOCUMENTS/TITLE TO DATA
Ownership of Documents
All electronic and hard copies of reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of CITY and CONSULTANT , and may be used by CITY as it may require without any additional cost to CITY. No reports shall be used by CONSULTANT for purposes other than this contract without the express prior written consent of CITY.
Any use of the work product for other project(s) without specific written authorization from CONSULTANT will be at CITY’S sole risk and without liability to CONSULTANT.
Further, any and all liability arising o ut of change s made t o, or reus e of, CONSULTANT’S deliverables under this Agreement by CITY or persons other than CONSULTANT is waived as against CONSULTANT and CITY assumes full responsibility for such changes unless CITY has given CONSULTANT prior notice and has rece ived from CONSULTANT written consent for such changes.
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Title to Data
If, as a part of any Project Agreement, CONSULTANT is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diag rams, visual aids and other rel ated materials, the originals of final data generated under this Agreement will be delivered to CITY upon the completion of the project, termination of services , or when requested by City.
All materials, documents, data or information obtained from CITY data files or any CITY medium furnished to CONSULTANT in the performance of any Project 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 te rmination o f any Project Agreement without written consent of CITY.
19. INTEREST OF CONSULTANT
CONSULTANT 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 Master Agreement, or any Project Agreement .
CONSULTANT warrants that, in performance of any Project Agreement, CONSULTANT shall not employ any person having any such in terest. CONSULTANT agrees to f ile 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.
20. REPORTS
CONSULTANT shall periodically prepare and submit to the Contract Officer such reports con cerning the perform ance of the services required by any Project Agreement as the Contract Officer shall require. CONSULTANT thereby acknowledges that the CITY is greatly concerned about the cost of work and services to be performed pursuant to any Project Agreement. For th is reason, CONSULTANT agrees that if CONSULTANT becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated therein, CONSULTANT shall promptly notify the Contract Officer of said fact, circumstance, technique or event.
21. RECORDS
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CONSULTANT shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by any Project Agreement and enable the Contract Officer to evaluate the performance of such services. 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 a nd transcripts from such records.
Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the CITY shall have access to such records in the event any audit is required.
22. AMENDMENTS
Both par ties to this Master Agreement understand that it may become desirable or necessary during the performance of any Project Agreement, for CITY or CONSULTANT to modify the scope of services provided for under any Project 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 contract prior to the performance of the additional work.
Until an amendment is so execute d, 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.
23. INDEPENDENT CONTRACTOR
All acts of CONSULTANT, his agents, of ficers, and employees and all others acting on behalf of CONSULTANT relating to the performance of this Master Agreement, and any Project Agreement shall be performed as independent contractors and not as agents, officers, or employees of CITY. CONSULTANT, by vir tue 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.
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CONSULTANT, his agents, off icers and employees are and, at all times during the term of this Master Agreement, shall represent and conduct themselves as independent contractors and not as employees of CITY.
CONSULTANT shall determine the method, details and means of performing the work and services to be provided by CONSULTANT under any Project Agreement. CONSULTANT shall be responsible to CITY only for the requirements and results specified in any Project Agreement and, except as expressly provided in any Project Agreement, shall not be subjected to CITY'S cont rol with respect to the physical action or activities of the CONSULTANT in fulfillment of any Project Agreement. CONSULTANT has control over the manner and means of performing the services. CONSULTANT is permitted to provide services to others during the same period service is provided to CITY. If necessary, CONSULTANT has the responsibility for employing other persons or firms to assist CONSULTANT in fulfilling the terms and obligations under any Project Agreement.
If in the performa nce of any Project Agreement any third persons are employed by CONSULTANT, such persons shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. 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 CONSULTANT.
It is understood and agreed that as an independent contractor and not an employee of CITY neither the CONSULTANT nor CONSULTANT'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.
It is further understood and agreed that CONSULTANT must issue W-2 forms or o ther forms as required by law for income and employment tax purposes for all of CONSULTANT'S personnel.
As an independent contractor, CONSULTANT hereby indemnifies , defends and holds CITY harmless from any and all claims that may be ma de against CITY based upon any contention by any third party that an employer -employee relationship exists by reason of this Agreement.
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24. NOTICES
Any and all notices permitted or required to be given hereunder shall be deemed duly given and effective (1) upon ac tual del ivery, 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 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: Name: _____________________________
Address: ___________________________
___________________________
Attention: __________________________
Phone: ___________________________
FOR CITY: Name: CITY of Ceres
Address: 2220 Magnolia St.
Ceres, CA 95307
Attention: Kevin Waugh, City Engineer
Phone: (209) 538-5775
25. INSURANCE REQUIREMENTS
Insurance shall be provided as specified in Exhibit “A”.
26. TERMINATION OF AGREEMENT
Termination on Occurrence of Stated Events
Any Project Agreement shall terminate automatically on the date on which any of the following events occur: (1) bankruptcy or insolvency of CONSULTANT, or (2) legal dissolution of CONSULTANT, unless the CITY consents in writing to the continuation of the Project Agreement.
Termination by CITY for Default of CONSULTANT
Should CONSULTANT default in the performance o f any Projec t Agreement or materially breach any of his provisions, at its option CITY may terminate any Project Agreement ITEM 7
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by giving written notification to CONSULTANT. The termination date shall be the effective date of the notice. Except for a material breach of any Proje ct Agreement resulting from the CONSULTANT’S willful destruction of CITY'S property, dishonesty or theft , the CITY w ill give the CONSULTANT 30 days notice to correct failure to perform required services or default in performance prior to executing a written notice of termination.
Termination by CONSULTANT for Default of CITY
Should CITY default in the performance of any Project Agreement or materially breach any of its provisions, at his /its option CONSULTANT may terminate any Project 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 any Project Agreement shall include but not be limited to any of the following: failure to pay C ONSULTANT as her eafter provided, willful destruction of CONSULTANT'S property by CITY, dishonesty or theft.
Termination by CITY for Lack of Budgeted Funds
CITY may terminate this Master Agreement, effective July 1 of any given year upon CITY'S d etermination to n ot appro priate sufficient funds for this Master Agreement for the ensuing fiscal year. In such event , CITY shall give CONSULTANT not less than 30 days written notice.
Termination for Failure to Make Agreed-Upon Payments
Should CITY fail to pay CONSULTANT all or any part of the payments set forth in any Project Agreement on the date due, at his option CONSULTANT may terminate any Project Agreement if the failure is not remedied within thirty (30) days after CONSULTANT notifies CITY in writing of such failure to pay. T he termination date shall be the effective date of the notice.
Termination by CITY for Change of CONSULTANT'S Tax Status If CITY determines that CONSULTANT does not meet the requirements of federal and state tax laws for independent contractor status, CITY may terminate this Master Agreement and any Project Agreement by giving written notice to CONSULTANT. The termination date shall be the effective date of the notice.
Voluntary Termination
The parties may terminate any Agreement upon mutual written Agreement.
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In the Event of Termination
If any Project Agreement is terminated pursuant to this Paragraph, CONSULTANT shall cease all his work on the project as of the termination date and shall see to it that his employees, subcontractors and agen ts are notified of such termination and cease their work. 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 on t he project.
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 any Project Agreement is terminated pursuant to any of the subsections contained in this para graph, 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. If any Project Agreement is terminated pursuant to the subparagraph entitled Termination by CITY for Default of CONSULTANT, CONSULTANT understands and agrees that CITY may, in CITY'S sole discretion, refuse to pay CONSULTANT for that portion of CONSULTANT'S services which were performed by CONSULTANT on the project prior to the termination date and which remain unacceptable and/or not useful to CITY as of the termination date.
27. INDEMNITY
CONSULTANT shall indemnify, defend and hold harmless CITY and its officers, officials and employees from and against all claims, damages, loss es a nd expen ses incl uding reasonable attorney fees arising out of the performance of the work described herein, to the extent caused in whole or in part by any negligent act or omission of the CONSULTANT, or any agent or employee of the CONSULTANT, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY.
CONSULTANT'S obligation to defend, indemnify, and hold CITY, its agents, officers, and employees harmless under the provisions of this paragraph is not limit ed to or restricted by any requirement in this Agreement for CONSULTANT to procure and maintain a policy of insurance.
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28. PREVAILING WAGES/CERTIFIED PAYROLL REQUIREMENT
Should the performance of the services required by any Project Agreement involve t he provision of field work, CONSULTANT is advised that compliance with California Labor Code Sections 1720 – 1781 regarding the payment of prevailing wages is required, including the obligation to comply with the provisions of Section 1776 of the Labor Cod e regarding payroll records. These provisions apply equally to the CONSULTANT and its subcontractors, and CONSULTANT shall require that its sub consultants and subcontractors comply with the Labor Code provisions.
29. RETENTION OF FUNDS
CONSULTANT hereby authorizes CITY to deduct from any amount payable to CONSULTANT (whether or no t arising out of any Project Agreement): (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate CITY for any losses, costs, liabilities, or damages suffered by CITY; and, (ii) all amounts for which CITY may be liable to third parties, by reason of CONSULTANT’S acts or omissions in performing or failing to perform CONSULTANT’S obligation under any Project Agreement. In the event that any claim i s made b y a thi rd party, the amount or validity of which is dispute d by CONSULTANT, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, CITY may withhold from any payment due, without liability for interest b ecause of su ch withholding, an amount sufficient to cover such claim. The failure of CITY to exercise such right to deduct or to withhold shall not, however, affect the obligations of the CONSULTANT to insure, indemnify, and protect CITY as elsewhere provided herein.
30. ENTIRE AGREEMENT
This Master Agreement, any Project Agreement , the Supplement al Agreement Provisions, and their respective exhibits contain the entire understanding between CONSULTANT and CITY. Additional or new terms contained in this Master Agreement and any Project Agreement which vary from any CONSULTANT'S proposal are controlling and are deemed accepted by CONSULTANT upon commencement of performance hereunder. All previous proposals, offers and communications relative to this Maste r Agreement and any Project Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Master Agreement and any Project Agreement. No future ITEM 7
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waiver of or exception to any of the terms, conditi ons, and provisions of this Master Agreement and any Project Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
31. PARTIAL INVALIDITY
If any provision in this Master Agreement or any Project Agreement are held by a court of competent jurisdicti on t o be inv alid, vo id, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
32. WAIVER
The waiver by any party to this Master Agreement, or any Project Agreement of a breach of any provision thereof 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.
33. AUDIT
CITY'S duly authorized represe ntative shall have access at all reas onable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify CONSULTANT'S charges to CITY under any Project Agreement.
CONSULTANT agrees to retain reports, records, documents, and files rel ated to charges under any Project Agreement for a period of three (3) years following the date of final payment for CONSULTANT services. CITY'S representative shall have the right to reproduce any of the aforesaid documents.
34. GOVERNING LAW
This Master Agreement and a ny Pr oject Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. The parties agree that as a cond ition precedent to the commencement o f litigation under either the Master Agreement or any Project Agreement , they shall submit the matter to non-binding mediation administered by the American Arbitration Association under its construction industry mediation rules, unless waived by mutual stipulation of both parties. Legal actions concerning any dispute, claim, or matter arising out of or in relation to said Agreements not settled by mediation shall be instituted in the Superior Court of the County of Stan islaus, State of California, or any o ther appropriate cou rt in such county, and CONSULTANT ITEM 7
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covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
35. TITLE VI ASSURANCES
Appendices A through E of the Ti tle VI Ass urances are attached herein as Exhibit “B”, and all provisions are made apart of this agreement as requ ired by U. S. Department of Transpiration Order No.1050.2A.
36. HEADINGS NOT CONTROLLING
Headings used in th is Master Agreement and any Projec t Agreement are fo r reference purposes only and shall not be considered in construing said Agreements.
37. CITY BUSINESS LICENSE
CONSULTANT will have a CITY of Ceres business license, as required.
38. ATTORNEYS’ FEES
If either party to this Master Agreement and any Project Agreement is required to initiate or defend or is made a party to any action or proceeding in a ny way connected with this Master Agreement or any Project 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 c osts for investigating such act ion, tak ing 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 enforceab le if such actio n i s 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
By________________________________
Signature
Alex Terrazas, City Manager_
Name and Title
CONSULTANT
By_______________________________
Signature
_________________________________
Name and Title
APPROVED AS TO FORM
__________________________________
CITY ATTORNEY
CONSULTANT’s Federal ID #
__________________________________
ATTEST:
_____________________________________
Fallon Martin, City Clerk
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EXHIBIT “A”
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 Commerci al General Liability coverage (O ccurrence Form CG 0001).
2. Insurance Services Office Form Number CA 00 01 cove ring Au tomobile Liability, Code 1 (any auto).
3. Workers’ compensation insurance as required by the State of California and Employer’s Liability Insurance.
4. Errors and Omissions Liability insurance appropriate to the CONSULTANT’S profession.
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 Commerci al General Liability
insurance or oth er form with a g eneral 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. Employer’s Liability:
$2,000,000 per accident for bodily injury or disease.
4. Errors and Omissions Liability:
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$2,000,000 per claim and aggregate.
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. At the option of the entity, either (a) the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects th e entity, its offic ers, officials, employees and volunteers or (b) the consultant shall provide a financial guarantee satisfactory to the entity guaranteeing payment of losses and related investigations, clam administration and defense expenses.
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 i nsured’s as respects: liability arising out of wo rk or operations performed by or on behalf of the 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 r espects 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 insuranc e policy required b y th is c lause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by mail 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, Contractor s Pollu tion Li ability and/or A sbestos Pollution L iability 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 three (3) 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 pr ior to the con tract effective date, t he Contractor mu st p urchase an extended period coverage for a minimum of three (3) years after completion of contract work.
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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, including amendatory endorsements, effecting coverage required by this clause. The endorsements should be on forms p rovided by the Entity o r on ot her than the Entity’s forms, provided those endorsements conform to Entity 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 as a waiver of these insurance policies, including endorsements effecting the coverage required by these specifications at any time.
Waiver of Subrogation
CONSULTANT her eby agrees to waive subrogation, which any insurer of contractor ma y 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 e ntity for all wo rk performed by the consultant, its agents, employees, independent contractors and subcontractors.
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September 2022
TABLE OF CONTENTS
Page
ARTICLE I INTRODUCTION ................................................................................................................................ 3 ARTICLE II CONSULTANT’S REPORTS OR MEETINGS ............................................................................. 4 ARTICLE III STATEMENT OF WORK ................................................................................................................ 4 ARTICLE IV PERFORMANCE PERIOD ............................................................................................................. 6 ARTICLE V ALLOWABLE COSTS AND PAYMENTS .................................................................................... 6 ARTICLE VI TERMINATION .............................................................................................................................. 10 ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS ........................................ 11 ARTICLE VIII RETENTION OF RECORD/AUDITS ........................................................................................ 11 ARTICLE IX AUDIT REVIEW PROCEDURES ................................................................................................ 12 ARTICLE X SUBCONTRACTING ...................................................................................................................... 13 ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES ................................ 15 ARTICLE XII STATE PREVAILING WAGE RATES ...................................................................................... 16 ARTICLE XIII CONFLICT OF INTEREST ........................................................................................................ 19 ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION ........................... 19
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR LOBBYING ................................................................................................................................................... 20 ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE ...................... 20 ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION ......................................................... 21 ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION .................... 22 ARTICLE XIX INSURANCE ................................................................................................................................ 26 ARTICLE XX FUNDING REQUIREMENTS...................................................................................................... 26 ITEM 7
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ARTICLE XXI CHANGE IN TERMS .................................................................................................................. 27 ARTICLE XXII CONTINGENT FEE ................................................................................................................... 27 ARTICLE XXIII DISPUTES ................................................................................................................................. 27 ARTICLE XXIV INSPECTION OF WORK ........................................................................................................ 28 ARTICLE XXV SAFETY ...................................................................................................................................... 28 ARTICLE XXVI OWNERSHIP OF DATA .......................................................................................................... 28 ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR ............... 29 ARTICLE XXVIII CONFIDENTIALITY OF DATA ............................................................................................ 29 ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION .......................................... 30 ARTICLE XXX EVALUATION OF CONSULTANT ......................................................................................... 30 ARTICLE XXXI PROMPT PAYMENT FROM THE LOCAL AGENCY TO CONSULTANT ...................... 30 ARTICLE XXXII TITLE VI ASSURANCES ....................................................................................................... 30 ARTICLE XXXIII NOTIFICATION ...................................................................................................................... 35 ARTICLE XXXIV CONTRACT ............................................................................................................................ 36 ARTICLE XXXV SIGNATURES ......................................................................................................................... 36 ITEM 7
Local Assistance Procedures Manual EXHBIT 10-R
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ARTICLE I INTRODUCTION
A. This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY:
The name of the “CONSULTANT” is as follows:
________________________________
Incorporated in the State of California
The Project Manager for the “CONSULTANT” will be ____________________________ The name of the “LOCAL AGENCY” is as
follows: City of Ceres
The Contract Administrator for LOCAL AGENCY will be Kevin Waugh, City engineer or his appointee.
B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT’s Cost Proposal dated __________. The approved CONSULTANT’s Cost Proposal is attached hereto (Attachment #1) and incorporated by reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.
C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys’ and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.
D. CONSULTANT in the performance of this AGREEMENT, shall act in an independent capacity. It is understood and agreed that CONSULTANT (including CONSULTANT's employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT's assigned personnel shall not be entitled to any benefits payable to employees of City.
E. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.
F. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY 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.
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G. Except as expressly authorized herein, CONSULTANT's obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior written approval of the LOCAL AGENCY. However, claims for money due or which become due to CONSULTANT from City under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.
H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.
I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports on each specific project in accordance with the Task Order. These reports shall be submitted at least once a month. The report should be sufficiently detailed for LOCAL AGENCY’s Contract Administrator or Project Coordinator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator or Project Coordinator, as needed, to discuss progress on the project(s).
ARTICLE III STATEMENT OF WORK
A. CONSULTANT services will be based on the Project Agreements or Task Orders as approved by the LOCAL AGENCY and the CONSULTANT.
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect once approved and signed by the LOCAL AGENCY and the CONSULTANT. The CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on June 2025, unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
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ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.
C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders.
D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY, LOCAL AGENCY will prepare a draft Task Order; less the cost estimate. A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review. CONSULTANT shall return the draft Task Order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT.
E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT’s approved Cost Proposal
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CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.
F. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.
J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
City of Ceres
Kevin Waugh
2220 Magnolia Street
Ceres, CA 95307
L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT.
M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.
N. If CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed.
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O. Task Orders may not be used to amend the language (or the terms) of this AGREEMENT nor to exceed the scope of work under this AGREEMENT.
P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed four hundred thousand dollars ($ 400,000.00). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
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Local Assistance Procedures Manual EXHBIT 10-R
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B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
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ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
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Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
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E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances. The LOCAL AGENCY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant.
No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT.
Any retainage kept by CONSULTANT or by a subconsultant must be paid in full to the earning subconsultant within 15 days after the subconsultant’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non- DBE subconsultants.
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Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
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ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
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c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
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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:______________________
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TABLE OF CONTENTS
Page
ARTICLE I INTRODUCTION ................................................................................................................................ 3 ARTICLE II CONSULTANT’S REPORTS OR MEETINGS ............................................................................. 4 ARTICLE III STATEMENT OF WORK ................................................................................................................ 4 ARTICLE IV PERFORMANCE PERIOD ............................................................................................................. 6 ARTICLE V ALLOWABLE COSTS AND PAYMENTS .................................................................................... 6 ARTICLE VI TERMINATION .............................................................................................................................. 10 ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS ........................................ 11 ARTICLE VIII RETENTION OF RECORD/AUDITS ........................................................................................ 11 ARTICLE IX AUDIT REVIEW PROCEDURES ................................................................................................ 12 ARTICLE X SUBCONTRACTING ...................................................................................................................... 13 ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES ................................ 15 ARTICLE XII STATE PREVAILING WAGE RATES ...................................................................................... 16 ARTICLE XIII CONFLICT OF INTEREST ........................................................................................................ 19 ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION ........................... 19
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR LOBBYING ................................................................................................................................................... 20 ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE ...................... 20 ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION ......................................................... 21 ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION .................... 22 ARTICLE XIX INSURANCE ................................................................................................................................ 26 ARTICLE XX FUNDING REQUIREMENTS...................................................................................................... 26 ITEM 7
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ARTICLE XXI CHANGE IN TERMS .................................................................................................................. 27 ARTICLE XXII CONTINGENT FEE ................................................................................................................... 27 ARTICLE XXIII DISPUTES ................................................................................................................................. 27 ARTICLE XXIV INSPECTION OF WORK ........................................................................................................ 28 ARTICLE XXV SAFETY ...................................................................................................................................... 28 ARTICLE XXVI OWNERSHIP OF DATA .......................................................................................................... 28 ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR ............... 29 ARTICLE XXVIII CONFIDENTIALITY OF DATA ............................................................................................ 29 ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION .......................................... 30 ARTICLE XXX EVALUATION OF CONSULTANT ......................................................................................... 30 ARTICLE XXXI PROMPT PAYMENT FROM THE LOCAL AGENCY TO CONSULTANT ...................... 30 ARTICLE XXXII TITLE VI ASSURANCES ....................................................................................................... 30 ARTICLE XXXIII NOTIFICATION ...................................................................................................................... 35 ARTICLE XXXIV CONTRACT ............................................................................................................................ 36 ARTICLE XXXV SIGNATURES ......................................................................................................................... 36 ITEM 7
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ARTICLE I INTRODUCTION
A. This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY:
The name of the “CONSULTANT” is as follows:
________________________________
Incorporated in the State of California
The Project Manager for the “CONSULTANT” will be ____________________________ The name of the “LOCAL AGENCY” is as
follows: City of Ceres
The Contract Administrator for LOCAL AGENCY will be Kevin Waugh, City engineer or his appointee.
B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT’s Cost Proposal dated __________. The approved CONSULTANT’s Cost Proposal is attached hereto (Attachment #1) and incorporated by reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.
C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys’ and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.
D. CONSULTANT in the performance of this AGREEMENT, shall act in an independent capacity. It is understood and agreed that CONSULTANT (including CONSULTANT's employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT's assigned personnel shall not be entitled to any benefits payable to employees of City.
E. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.
F. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY 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.
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G. Except as expressly authorized herein, CONSULTANT's obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior written approval of the LOCAL AGENCY. However, claims for money due or which become due to CONSULTANT from City under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.
H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.
I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports on each specific project in accordance with the Task Order. These reports shall be submitted at least once a month. The report should be sufficiently detailed for LOCAL AGENCY’s Contract Administrator or Project Coordinator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator or Project Coordinator, as needed, to discuss progress on the project(s).
ARTICLE III STATEMENT OF WORK
A. CONSULTANT services will be based on the Project Agreements or Task Orders as approved by the LOCAL AGENCY and the CONSULTANT.
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect once approved and signed by the LOCAL AGENCY and the CONSULTANT. The CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on June 2025, unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
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ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.
C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders.
D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY, LOCAL AGENCY will prepare a draft Task Order; less the cost estimate. A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review. CONSULTANT shall return the draft Task Order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT.
E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT’s approved Cost Proposal
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CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.
F. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.
J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
City of Ceres
Kevin Waugh
2220 Magnolia Street
Ceres, CA 95307
L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT.
M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.
N. If CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed.
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O. Task Orders may not be used to amend the language (or the terms) of this AGREEMENT nor to exceed the scope of work under this AGREEMENT.
P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed four hundred thousand dollars ($ 400,000.00). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
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B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
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ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
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Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
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E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances. The LOCAL AGENCY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant.
No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT.
Any retainage kept by CONSULTANT or by a subconsultant must be paid in full to the earning subconsultant within 15 days after the subconsultant’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non- DBE subconsultants.
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Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
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ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
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c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
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Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language