Project Name/No.: Line I Design Contract No.: ______________
Project Manager: PW/ M. Hindersinn Approved: ________________ 01225.0001/863604.2 (Long Form)
AGREEMENT FOR SERVICES
BETWEEN THE CITY OF CHINO AND
PROACTIVE ENGINEERING CONSULTANTS
THIS AGREEMENT FOR SERVICES (herein “Agreement”) is made and entered into this 6th day of February, 2024 (“Effective Date”) by and between the City of Chino, a California municipal corporation (“City”) and Proactive Engineering Consultants , a California Corporation (“Consultant”). City and Consultant may be referred to individually as “Party” or collectively as “Parties.”
RECITALS
A. City has sought, by issuance of a Req uest for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a pr oposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Chino’s Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the select ion of Consultant for per formance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mu tual promises and covenants made by the Parties and contained herein and othe r consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services ” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, compete nt, a nd professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall 01225.0001/863604.2 2
follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes o f this Agreement, th e phr ase “highest professional standards ” shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Scope of Services shall include the scope of work included in Consultant’s proposal, which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with , all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity hav ing jurisdiction in effect at the time service is rendered.
1.4 California Labor Law.
If the Scope of Services includes any “public work” or “maintenance work,” as those terms are defined in California Labor Code Section 1720 et seq. and California Code of Regulations, Title 8, Section 16000 et seq. , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the r equirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws, as they pertain to such work, including the following requirements:
(a) DIR Monitoring a nd Enforcement. The public work and/or maintenance work performed under this Agreement shall be subject to compliance monitoring and enforcement by the Department of Industrial Relati ons (“DIR”). Consultant shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages . Consultant shall p ay prevailing wa ges to the exte nt required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested pa rty on request. By initiating any work under this Agree ment, Consultant acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site where work is performed under this Agreement.
(c) Penalty for Failur e to Pay Prevailing Wages . Consultant shall comply with and be bound by the provisions of Labo r Code Sections 1774 and 1775 concern ing the payment of prevailing rates of wages to workers and the pe nalties for failure to pay prevailin g wages. The Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined 01225.0001/863604.2 3
by the DIR for the work or craft in which the worker is employed for any publ ic work done pursuant to this Agreement by Consultant or by any subcontractor. (d) Payroll Records . Consultant shall comp ly with and be bound by the provisions of Labor C ode Section 1776, which require s Consultant and each subcontractor to:
keep accurate payroll records and verify such records in writing under penalty of perjur y, as specified in Sectio n 1776; certi fy and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations T itle 8, Section 200 et seq. concerning the empl oyment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenti ceable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy o f the information submitted to any a pplicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day . Consultant acknowledges that eight (8) hours labor constitutes a legal day's work. Consultant shall comply with and be bou nd by Labor Code Section 1810.
(g) Penalties for Excess Hours . Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to the City, forf eit twenty-five dollars ($25) for e ach worker employed in the perf ormance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required o r 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 t he provisions of Division 2, Pa rt 7, Chapter 1, Artic le 3 of the Labor Code.
Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensatio n for all hours worked in exce ss of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700 provide that every employer wil l be required to secure the payment of compensation to its employees if it has employees. By exec uting this Agreement, and in accordance with the provisions of California Labor Code Section 1861, Consultant certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor C ode which require every employer to be insured against l iability for workers' compensation or t o undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work o f this contract.”
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(i) Consultant’s Responsibility for Subcontractors. For every subcontractor who will perform work und er this Agreement, Consultant shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapte r 1 (comme ncing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any sub contractor for work under this Agreement. Consultant shall be required to take all actions necessary to enfo rce such contractual provisions and ensure subcontrac tor's compliance, including without limitation, conducting a review of the certified payroll re cords of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her work ers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.5 Licenses, Permits, Fees and Assessments.
Consultant shall obtain a t its sole cost and expense such lic enses, permits and approvals as m ay be required by law for the performance of the services required by this Agreement.
Consultant shall have the sole obli gation to pay for any fees, assessments and ta xes, plus applicable penalties and interest, which may b e imposed by law and arise from or are necessary for the Consultant’s performance of the services requi red by this Agreement, an d shall indemnify, defend and hold harmless City , its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest lev ied, assessed or imposed against City hereunder.
1.6 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered th e scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the fa cilities, difficulties an d restrictions attending p erformance of the services under this Agreement. If the services i nvolve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existin g, prior to commencement o f services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City o f such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Project Manager.
1.7 Software and Computer Services.
If the Scope of Services i ncludes the provision and/or installation of any software, computer system, or other computer t echnology, Consultant repr esents and warrants that it has inspected the City’s current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or ins talled by Consultant unde r this Agreement is compat ible, and shall be fully functional, with such infrastructure, equipment, computer system and software of the City. Consultant acknowl edges that the City is relying on the representation by Consultant as a material consideration in entering into this Agreement.
1.8 Care of Work.
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The Consultant shall adopt reasonable met hods during the life of the Agreemen t to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other com ponents thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until accep tance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.9 Further Responsibilities of Parties.
Both parties agre e to use reasonable care and diligence to perf orm their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all a ctions as may be reasonab ly necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.10 Additional Services.
City shall have the right , subject to state law and the City’s Municipal Code, at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services 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 Project Manager to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work , and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written app roval of the Consultant. Any increase in compe nsation for extra wo rk sh all require the approval of Cit y Council unless the City Council has previously authorized the City Manager to approve an increase in compensation and the amount of the increase does no t exceed such authorization. It is expressly understood by Consultant that the provisions of this Sect ion shall not apply to services s pecifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Servi ces may be more cost ly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute di scretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
1.11 Special Requirements.
Additional terms and condition s of this Agreement, if an y, which are made a part hereof are set forth in the “Special Requ irements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth i n this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compe nsation” attached hereto a s Exhibit “C” and 01225.0001/863604.2 6
incorporated herein by this reference. The total compensation, including reimburseme nt for actual expenses, shall not exceed One Million Seven Hundred Six Thousand Nine Hundred Sixty-Five Dollars and Zero Cents ($1,706,965.00) (the “Contract Sum”), unless addit ional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the servic es, less contract retentio n; (iii) payment for time and materials based upon the Consultant’s rat es as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub ta sks, (b) contract retention is main tained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensati on. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City .
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilita te such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original i nvoice for all work performed and expen ses incurred during the preceding m onth in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement . Consultant shall not invoice City for any duplicate services performed by more than one person.
All invoices shall be submitted by email to [email protected]. Each invoice is to include:
(a) Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
(b) Line items for all materials and equipment properly charged to the Services.
(c) Line i tems for all oth er approved reimbursable expenses claimed, with supporting documentation.
(d) Line items for all approved subcontractor labor, s upplies, equipment, materials, and travel properly charged to the Services. 01225.0001/863604.2 7
(e) If this Agre ement requires prevailing wages, per Section 1.4 of the Agreement, all invoices shall incl ude a copy of Consultant’s Certified Payroll and proof that Certified Payr oll has been submitted to the DIR.
Consultant shall also submit a list of the prevailing wa ge ra tes for all employees and subcontractors providing services under this Agreement, as applicable, with Consultant’s first invoice. If these rates change at any time during the term of th e Agreement, Consultant shall submit a new list of rates to the Ci ty with its first invoice following the effective date of the rate change.
City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use i ts best efforts to cause Consultant to be paid within forty -five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, th e City cannot guarantee that paymen t will occur within this t ime period . In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consul tant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
2.6 Contingency of Funds.
Consultant acknowledges that funding or portions of funding for this Agreem ent may be contingent upon State bud get approval; receipt of funds from, and/or obligation of funds by the State of California to City; or inclusion of sufficient f unding for the services he reunder in the budget approved by Chino City Council for each fisc al year covered by this Agreement. If such approval, funding or appropriations are not fo rthcoming, or are otherwise limited, Ci ty may immediately terminate or modify this Agreement without penalty.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall pe rform all services within the time period(s) established in the “Schedule of Performance ” attached hereto as Exhibit “D” and incorporated herein by this 01225.0001/863604.2 8
reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Project Manager but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unu sually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots , str ikes, freight e mbargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the comm encement of such delay not ify the Project Manager in writing of the causes of the delay. The Project Manager shall ascertain the facts and the extent of delay, and extend the time fo r performing the services for the perio d of the enforced delay when and if in the judgment of the Project Manager such delay is justified. The Project Manager ’s determination shall be fi nal and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any dela y in the performance of this Agreement, however caused, Consultant’s sole remedy being exten sion of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in ful l force and effect until c ompletion of the services , which shall be no later than June 30, 2025, except as otherwise provided in the Schedule of Performance ( Exhibit “D”).
This Agreement may be renewed by a written amendment for up to an additional Two (2) One (1) year term extensions at the optio n of the City if the City is satisfied with the quality of services performed by Consultant under this Agreement.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized t o act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals we re a substantial inducement for City to enter into this Agreement. 01225.0001/863604.2 9
Therefore, the foregoin g principals shall be resp onsible during the term of this Agreement for directing all activi ties of Consultant and devoting suff icient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclus ive direction and contro l of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their resp onsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the s ervices required under t his Agreement.
Consultant shall notify Cit y of any changes in Consultant’s sta ff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manne r, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any ma nner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to r etirement, health care or any other benefits which may otherwise accrue to City ’s employees. Consultant expressly waives any cla im Consultant may have to any such rights.
4.3 Project Manager.
The Project Manager shall be Michele Hindersinn, PE, City of Chino Principal Engineer, or any other person as may be designated by the Project Manager. It shall be the Consultant’s responsibility to assure that the Project M anager is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which mu st be made by City to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager . The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents o r employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selecti on, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contract or of City an d shall remain at all time s as to City a wholly independent contract or with only such obliga tions as are consistent with that ro le. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed 01225.0001/863604.2 10
to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledg e, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole o r in part the services required hereunder without the express written approval of the City. In ad dition, neither this Agreement nor any in terest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, w hether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder sha ll include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unap proved tra nsfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting Consultant’s indemnification of City, and prior to commencement of any services under this Agreement, Consultant sha ll obtain, provide and maintain at its own expense during the term of t his Agreement, polici es of insu rance of t he type and amounts described below and in a form satisfactory to City.
(a) General liability insurance . Consultant s hall maintain commercial g eneral liability insurance with coverage a t least as broad as Insu rance Services Office form CG 00 01, in an amount not less than $ 1,000,000 per occurrence, $ 2,000,000 general aggregate, for bodily injury, personal injury, and pro perty damage. The policy m ust include contractual liability that has not been amended. Any e ndorsement restricting sta ndard ISO “insured contract” language will not be accepted.
(b) Automobile liability insurance . Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 co vering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance . Consultant shall maintain professional liability insurance that covers t he Services to be performe d in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement. 01225.0001/863604.2 11
(d) Workers’ compensation insurance . Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Consultant shall includ e all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverage s for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance . Co nsultant shall provide certificates of ins urance to City as eviden ce of the insurance coverage require d herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certificat ion of insurance shall be kept on fi le with Ci ty at all times during the term of this Agreement. City reserves the right to require complete, certified copies of al l required insurance polic ies, at any time.
(b) Duration of coverag e. Consultant shall proc ure a nd maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection w ith the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants. (c) Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herei n may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provisio n that such coverage shall also apply on a primary and non - contributory basis for the benefi t of City before the City’ s own insurance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by an insurance company currently aut horized by the Insurance C ommissioner to transact business of insura nce or that is on the Li st of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise ap proved by the City’s Risk Manager.
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(f) Waiver of subrogation . All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive su brogation against City, it s elected or appointed officers, agents, o fficials, employees and volunteers or shall specifically all ow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery pr ior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(g) Enforcement of contract p rovisions (non -estoppel). Consultant acknowledges and agrees that an y actual or alleged failure on the part of the City to inform Consultant of non -compliance with any re quirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(h) Requirements not limiting . Requirements of specific co verage features or limits contained in this section are not intend ed as a limitation on cove rage, limi ts or othe r requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a g iven issue and is not in tended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than t he minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the C onsultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of cancel lation. Consultant agrees to oblige its in surance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of c overage for each required coverage.
(j) Additional insured status . General liability policie s sha ll provide or be endorsed to pr ovide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such polic ies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition o f undisclosed coverage limitati ons. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom clai m is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause . Consultant agrees to ensure that its subconsultants , subcontractors, and any other party involved with the project who is brought onto or invol ved in the project by Cons ultant, pr ovide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all s uch coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements 01225.0001/863604.2 13
of t his section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications . The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in sub stantial additional cost to the Consultant, the City and Con sultant may renegotiate Consultant’s compensation.
(o) Self-insured retentions . Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims . Consultant sha ll give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(q) Additional i nsurance. Consultant shall also procure and maintain, at its own c ost a nd expense, any addit ional kind s of insur ance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
5.3 Indemnification.
To the full extent perm itted by law, Consultant agrees to indemni fy, defend and hold harmless the City, its officers, employe es and agents ( “Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or pro perty, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, fi rm or entity arising out of or in connection with the negligent pe rformance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful mi sconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, coven ant or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connectio n with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any s uch claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activ ities of Consultant hereunder; and Consultant agrees to save and h old the City, its officers, agents, and employees harmless therefrom;
01225.0001/863604.2 14
(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to th e City, its officers, agents or employees, any and all costs and exp enses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ’ fees.
Consultant shall incorporate simi lar indemnity agreements w ith its subcontra ctors and if it fails to do so Consultant shall be fully responsible to ind emnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error o r omission, or reckless or willful m isconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to cl aims or liabilities occurr ing as a result of City ’s sole negligence or willful acts or omiss ions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City ’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligenc e, recklessness or willful misconduc t of the design professional . The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and req uire subco ntractors to keep, such ledgers , books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents rel ating to the disbursements charged to City and services performed he reunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Project Manager to evaluate the performance of such services. Any and all such documents sh all be maintained in accordance with generally accepted accounting principles and shall be c omplete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business ho urs of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of 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. In the event of dissolution of Consultant’s business, custody of the books and records ma y be given to City, and access shall be provided by Consultant’s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall pe riodically prepare and sub mit to the Project Manager such reports concerning the performance of the services required by this Ag reement as the Project Manager shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant 01225.0001/863604.2 15
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 herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decrease d cost related thereto and , if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, d ata, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared b y Consultant, its em ployees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termi nation of this Agreement , and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reus e, or assignment of the do cuments and materials hereunder. Any use, reuse or assignment of s uch c ompleted documents fo r other pr ojects and /or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole r isk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, re use or assign ment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodi ed therein.
All subcontractors shall provide for assignment to City of any documents or mate rials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qual ify as “works made for h ire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose an y such information or work product to persons or entities other than City without prior writ ten authorization from the Project Manager.
(b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Project Manager or unl ess requested by the City Attorney, voluntarily provide documents, declarations, letters of support, t estimony a t depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or w ork product in violation o f this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. 01225.0001/863604.2 16
(d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontract ors be served with any summons, comp laint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunit y to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement s hall be interpreted, const rued and g overned both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute , claim or matter arising out of or in rel ation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit t o the personal jurisdiction of such court in the event of such act ion. In the event of litig ation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of t he Consultant’s default sh all not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising o ut of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or wh ich 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 par ties, by reason of Consultant’s acts or om issions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear 01225.0001/863604.2 17
to be the basis for a claim of lien, City may withhold from any payment due, without liability 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 obli gations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of an y provision of this Agreement.
Acceptance by City of any work or s ervices by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non -defaulting party on any d efault shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect t o rights and remedies ex pressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such ri ghts or remedies shall not preclude the exercise by it, at the same or different times, of a ny other rights or remedie s for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent wit h the purposes of this Agr eement. Notwithstanding any contrary provision herein, Consultant shall file a statutory cla im pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Since the determin ation of actual damages for any delay in p erformance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and sh all pay to the City the sum of Zero Dollars and Zero Cents ($0.00) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to term inate this 01225.0001/863604.2 18
Contract at any time, with or without cau se, upon thirty (30) days’ written notice to Consultant, except that where t ermination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Project Manager . In addition, the Consultant reserves the right to ter minate this Contract at any time, wi th or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately c ease all services hereunder except such as may be specifically approved by the Project Manager. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Project Manager thereafter in accordance with the Schedule of Compensation or such as may be approved by the Project Manager, ex cept as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable val ue of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the term inating party need not provide the non -terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance w ith the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for comp letion of the services required here under exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to a ny action or proceeding in any way connected with this Agreement, the prevaili ng par ty in su ch action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney ’s fees. Attorney’s fees shall include atto rney’s fees on any appeal, and in addition a party e ntitled to attorney’s fees shall be entitled to al l other reasonable costs f or investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally l iable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
01225.0001/863604.2 19
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which w ould conflict in any manner with the interests of City or which would in any w ay hinder Consultant’s performance of services und er this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest sh all be employed by it as a n officer, employee, agent or sub contractor without the ex press wr itten consent of the Project Manager . Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interest s of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision r elating to the Agreement which affects her/his financial interest or the financial interest of any corporatio n, partnership or association in which (s)he is, d irectly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under o r through them, that there shall be no discrimination against or segregation o f, any person or gr oup of persons on account of ra ce, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to ensure that applicants are employed and that e mployees are treated durin g employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national ori gin, ancestry or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. , as amended, and in co nnection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized alien s for the performance of w ork and/or services covered by this Agreement, and should any liability or sanctions be imposed agains t City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys ’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, de mand, request, document, consent, approval, or commu nication e ither party desires or is required to gi ve to the other party or a ny other person shall be in writing and either served personally or sent by prepaid, first -class mail, in the case of the City, to the City 01225.0001/863604.2 20
Manager and to the attention of the Project Manager (with her/his name and City title), City of Chino, 13220 Central Avenue, Chino, California 91710 and in the case of the Consultant, to the person(s) at the address de signated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy -two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation.
The terms of this Agreement shall be construed in acc ordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments heret o is t he entire, co mplete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting th is Agreement and this Agre ement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid u nless made in writing and approved by the Consultant and by the Ci ty Co uncil. The parties agree that t his requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the eve nt that any one or more of the phrases, sentences, clauses, paragraphs, or sections cont ained in this Agreement shall be declare d invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceabili ty shall not affect any of the remaining phrases, sentences, clauses, paragrap hs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its inva lidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of C ity participate in any decision relating to this A greement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association i n which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s) he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of 01225.0001/863604.2 21
“financial interest” shall be consistent with State law and shall not include i nterests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5 . Consultant warrants and represents that it has not paid or given, and will no t pay or give, to any thir d party including, but not limited to, any City offi cial, officer, or employee, any money, considerati on, or other thing of valu e as a result or consequence of obtaining or being awarded any agreement.
Consultant further warrants and represents that (s)he/ it has not engaged in any act(s), omission(s), or ot her co nduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being award ed any agreement. Consultant is aware of and under stands that any such act(s ), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of v alue will render this Agreement void and of no force or effect.
Consultant’s Authorized Initials _______
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, ( ii) they are duly authoriz ed to execute and deliver this Agreement on behalf o f said par ty, (iii) by so executing this Agreement , such party is formally bound to the provisions of this Agreement, and (iv) th at entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]
01225.0001/863604.2 22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF CHINO, a municipal corporation
Linda Reich, City Manager
ATTEST:
Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
_____________________________ _____________________________
Fred Galante, City Attorney Hye Jin Lee, Director of Public Works
CONSULTANT:
PROACTIVE ENGINEERING
CONSULTANTS, INC.:
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatu res required when C onsultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer.
01225.0001/863604.2 A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the Services d escribed in Consultant’s Proposal, attached hereto as Exhibit A-1.
II. All work products are subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City unt il found satisfactory and accepted by City.
01225.0001/863604.2 A1-1
EXHIBIT “A-1”
Scope of Services
Task 1 – Hydrology and Hydraulics
The deliverable is one final hydrology and hydraulic report for the drainage area properly sizing all catch basins, storm drain main, laterals, and above ground channel. All calcula tions will be performed per SBCFCD Standards. Calculations will be provided to support the sizing of the outlet structure at Prado Lakes, including analyses for energy dissipation measures, and 85th percentile and 2 -year storm event for the improved drop inlet structure.
A historical flow hydrology analysis will be performed to identify the hydrologic impacts of the different options to be evaluated under Task 2. This analysis will evaluate what stormwater runoff has historically discharged to the OCFCD property on the south side of Pine Avenue. This will be important in evaluating the alternatives in Task 2.
Submittals will take place at 30%, 65%, 95% (interim) and 100% stages as a report binder including the report, calculations, and drainage map as well as a digital PDF copy.
Deliverable(s): One final hydrology and hydraulics report in hardcopy and digital format (30%, 65%, 100%)
Task 2 – Feasibility Study
Q3 will prepare one feasibility study memorandum for the 5 options described in the Approach secti on.
Q3 will prepare a conceptual layout plan of each option, including layout and typical cross -sections with standard details and standard specifications.
Existing utilities will be shown per the responses from the first utility notification letters. Facility Ma p Request (FMR) letter to all utility owners identified as po tentially impacted by the proposed project improvements and utilize the collected facilit y maps and/or ‘as -built’ plans to develop the preliminary Utility Map. Preliminary research shows a minimum of eleven utility owners with facilities potentially within the project limits:
Utility Owner Facility Type
1 City of Chino Potable Water/ Sanitary Sewer
2 City of Ontario Potable Water/ Sanitary Sewer
3 Jurupa Community Services (JCS) Potable Water/ Sanitary Sewer 4 Inland Empire Utilities Agency (IEUA) Reclaimed/ Recycled Water Trunlines 5 Santa Ana Watershed Project Authority (SAWPA) HP Brineline/ Trunklines 6 Crown Castle (CC) OH & UG Communication Lines
7 Charter/ Spectrum (CHTR) OH & UG Communication Lines
8 Frontier (FTR)
OH & UG Communication Lines
01225.0001/863604.2 A1-2
9 Southern California Edison (SCE) OH & UG Electric Trans, Dist & Telecom 10 Southern California Gas Company (SCG) Transmission & Distribution GLs 11 Chino Institute for Men Domestic Water Lines
Q3 will obtain records of any existing third-party leases or licenses that may be affected by the proposed design options to identify potential acquisition or easement impacts resulting from the design. Property rights requirements may in clude a combination of permitted rights, perma nent acquisitions, and/or temporary construction easements (TCEs) from the same underlying property owner.
Q3 will prepare a preliminary engineer’s estimate of probable costs based on unit costs provided by the city and the la test construction bids for similar projects. Conceptual costs for right -of-way/easement acquisition, traffic control, staging, and shoring will be included. The intent is to fully capture all elements and avoid any “surprises” once the project moves to the final design phase.
Q3 will develop a comparative matrix that defines the configuration, cost, right -of-way, environmental, construction and permitting timeline, existing utility impacts, permitting, and hydraulic efficiency of each alternative.
Deliverable(s): One feasibility study memorandum in digital format including comparative matrix, cost estimate, and conceptual plans.
Task 3 – Survey
Base Map – Q3 will conduct research and the field measurements necessary to re -trace the centerli ne and right of way of Euclid Avenue within the project limits. Survey monuments located and indicated on the survey shall be limited to existing centerline monuments along the streets as indicated. All research will be limited to available public records.
Aerial Topography – Q3 will provide aerial topography and existing plan imetric data for the project site. The topography will be compiled at a scale of 1”=40’, with 1 -foot contour intervals. Perform the necessary fieldwork to establish g round control for the aerial. Unless requested otherwise, the c ontrol will be based on California State Plane coordinates, NAD83, Zone V, and available City of Chino benchmarks, NGVD29 datum.
Supplemental Topography – Q3 will perform field survey cross -sections at 25 -foot intervals along Euclid Avenue, within the project limits. Visible indica tions of surface utilities or structures lying within the project limits will be located, as will accurate lid/rim elevations for drainage structures present. Q3 will obtain the applicable encroachment permits or right-of-entry permits from San Bernardino County.
Legal Descriptions – Q3 will prepare legal descriptions and exhibits to accompany the dedication of the additional right -of-way areas and temporary construction easements within the project li mits. The documents will be prepared and stamped by a Pr ofessional Land Surveyor and provided to the client for attachment to documentation provided by others. It is estimated that two dedication documents and two temporary construction easement documents will be required for this effort.
Deliverable(s): One AutoCAD drawing file with the topographic line work for the limits of work; Two legal descriptions and exhibits for dedication and temporary construction easements.
Task 4 – Geotechnical Design Report and Other Field Studies Sub-consultant Converse will perform pavement and soil investigations along the preferred project alignment. Exploration to include twenty-four (24) borings, 15 at a depth of 30 feet along Euclid Ave, 5 within the Regional Park at a depth of 20 feet, and 4 percolation tests at a depth of 10 feet along the project alignment.
01225.0001/863604.2 A1-3
Sub-consultant Converse will prepare a geotechnical design report to provide design recommendations, including:
▪ Seismic Parameters based on 2022 CBC
▪ Table listing location and existing pavement thicknesses (if encountered) ▪ Geotechnical parameters for storm drain design
▪ Allowable soil bearing capacity
▪ Static and Seismic lateral earth pressures
▪ Excavatability of the soil along the storm drain alignments ▪ Storm drain RCB subgrade preparations recommendations ▪ Temporary trench slope stability evaluation
▪ Recommendation for protecting existing utilities if located within close vicinity of the proposed storm drain alignment
▪ Structural backfill recommendation
▪ Shoring design recommendation
▪ Storm drains trench backfill recommendations
▪ Pavement structural section based on the traffic index provided by the City of Chino
Sub-consultant Converse will coordinate with Caltrans and the County of San Bernardino to secure permitting for the exploratory investigations.
Deliverable(s): One (1) geotechnical design report, including log of test borings and infiltration tests, in PDF format (65% and 100% submittals)
Task 5 – Research
Q3, supported by subconsultant EPIC, will prepare and issu e a Utility Verification Letter (UVL) to the utility own ers for the owner’s review for correctness of the description and depiction of the utility facilities delineated on the Utility Plan. Q3 will update the Utility Plan per the utility owners’ responses to the UVLs.
To supplement the responses to the UVLs, Q3 will coordinate with a qualified vendor to perform up to 20 Positive Utility Locating (Potholing) and up to two days of Ground Penetrating Radar (GPR) to identify potholing locations that are not clearly defined by surface appurtenances or visual survey.
The RFP timetable assumes that the proposed improvements will avoid conflicts with existing utility facilities. Q3 will collect utility owner protection in place standards to be added to the project specifications as required. Q3 will prepare and issue ‘No Conflicts’ to Owner letters (NCLs) on behalf of the project. Q3 will also prepare and submit a final Utility Plan.
Q3 will draft a composite utility plan exhibiting all existing utilities within the proposed construction area and all utilities affected by the proposed storm drain improvement. The plan should include above and below ground utilities, wet & dry utilities. The plan shall have a legend listing each utility symbol shown on the plan with a description of the conduit o r pipe material and the name & address of the utility company contact person.
Deliverable(s): Three utility notification letters including maps in PDF format; one (1) composite utility plan in CAD and PDF format; one (1) potholing report (8-1/2”x11”) report in PDF format.
Task 6 – Permitting
CEQA Initial Study / Mitigated Negative Declaration (IS/MND) – Q3, supported by Subconsultant RVA, will prepare supporting environmental documentation for an Initial Study/ Mitigated Negative
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Declaration to satisfy the CEQA requirements. Specifically:
▪ Technical studies including Focused Surveys for least Bell’s vireo (LBVI), Burrowing Owl Survey, Biological Resources Assessment/Jurisdictional Delineation, Cultural Resources, Air Quality and Greenhouse Gas, Noise Impacts. AB52 consultation is not anticipated or included. ▪ Written responses to 2 rounds of comment letters or emails submitted to the City. ▪ CEQA required notices for City to review and assist with all noticing and p osting requirements, including with the San Bernardino County Clerk and the State Clearinghouse. We anticipate that the City will lead the public outreach efforts.
USACE NEPA Environmental Assessment (EA) – Q3, supported by Subconsultant RVA, will prepare an Administrativ e Draft Environmental Assessment (EA) to determine if th e Project will have a significant effect on the environment, using USACE LA District procedures and policies, which will contain a description of the Project as it pertains to the Sect ion 408 permission and Section 404 permit, the Project location, and a description of the environmental setting of the Project site.
Regulatory Permitting and SBCFCD Encroachment Permit – Q3, supported by Subconsultant RVA, will prepare the necessary permit application pa ckages and supporting documents in order to obtain the necessary permits and agreements for the project which include Section 408 for all modifications to the Congressionally authorized and constructed US Army Corps of Engineers (USACE) pro ject, 404, 401, 1602 permits, as well as Count y encroachment permits. County and USACE real estate approvals will also be required. Q3 will submit the application through the County’s Permitting Portal (EZOP).
Deliverable(s): Final IS/MND and Notice of Determination; Filing for Sections 408, 404, 401, and 1602 Permits; Filing for SBCFCD Encroachment Permit.
Task 7 – Prepare Plans, Specifications, and Estimates (30%, 65%, 95% (Interim) and 100%)
Improvement Plans – Q3 will prepare improvement plans, as follows:
▪ Storm drain improvement plan that includes plan and profile. Will also include stationing and elevations of junction structures, catch basins, and laterals. Includes junction structures from existing storm drain laterals.
▪ Street improvement plans, including paving, accessibility, striping and signing to restore existing infrastructure in kind within the limits of work. Plans and details will be per existing record drawings. The plans will also show any utilities, utility appurtenances, and any adjustments or relocations of existing utility boxes and the limits of pavement replacements. 20-foot scale blowup details will be created for the crossings at Kimball Ave, Bickmore Ave, Pine Ave, and as Line I crosses Euclid Ave.
▪ Traffic signal modification plans to replace existing infrastructure. Annotated record drawings will be consistent with the standards and requirements of the City, California Manual on Uniform Traffic Control Devices (MUTCD), and Caltrans.
▪ Civil Improvement Plan:
o Existing control and demolition plan with plan and excavation paylines identifying utilities to be protected in place.
o Precise grading plans with typical cross-sections to allow for positive drainage in the improved channel (Kimball to Bickmore), drainage swale along the proposed alignment within the limits of work.
o Erosion and sediment control plan to identify BMPs listed as part of the SWPPP. Details to include CASQA standard BMPs.
▪ Structural improvement plans will be prepared for structural design for wing walls, aprons, cutoff
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walls, junction and transition structures. The proposed RCB will generally follow Caltrans Standard Plan D81 and D83A. Structural Calculations will be performed for any non-standard features using AASHTO LFRD Design Specifications.
▪ Landscape and Irrigation Plan within the limits of the project to replace the existing landscape in kind. Using the existing record drawings, plan will include an irrigation plan and details, and planting plan and details on standard sheets. Irrigation plans will include water-conserving irrigation design, calculations and details to meet local codes and criteria. ▪ Construction staging and traffic control plans with detour routes, and locations for staging per phase.
▪ Title sheet with location map, general notes and abbreviations, construction notes, and contact information.
▪ A matrix of comments will be updated with resolutions as the project progresses. The matrix of responses to comments will be attached to each submittal.
Specifications will be based on the most current City boilerplate Bid Package and the Greenbook for this specific project and include anticipated project quantities. Proposed modifications will be redlined.
Q3/PEC will prepare an engineer’s estimate of construction quantities and an opinion of probable construction cost using industry-standard unit costs, ENR construction costs, and available City cost database.
SWPPP and Permit Registration Documents. The City will be the legally responsible party.
Public Transportation Project WQMP. Full trash capture devices may be specified, at the discretion of the City.
Deliverable(s): Three sets of improvement plans at 30%, 65%, 95% (interim) and 100% on bond paper; one set of stamped mylars; three bound copies of specifications and engineer’s estimate of probable costs at 65% and 100%
Task 8 – Meetings
Q3 will arrange monthly progress status and coordination meetings throughout the life of the project with the City (30%, 65%, 95%, 100%, and pre-construction). In addition, Q3 anticipates two coordination meetings with SBCFCD.
Deliverable(s): Progress updates (up to 12); Progress meeting agenda and minutes (up to 12)
Task 9 – Bidding Assistance
A budget of 80 hours to be billed on a time and material basis is assumed for this task. Bidding assistance may include responding to City Staff RFIs, preparation of the bidding documents, attending pre-bid meetings, and responding to RFIs.
Deliverable(s): As needed by the City
Task 10 – Construction Support Services
A budget of 320 hours to be billed on a time and material basis is assumed for this task. Construction
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administration support may include responding to construction staff and/or contractor RFIs, construction specifications, bid support, and record drawings.
Deliverable(s): As needed by the City
01225.0001/863604.2 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
01225.0001/863604.2 C-1
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall be compensated for the services provided under this Agreement in accordance with the budget and rates provided in Exhibit “C-1”.
II. Within the budgeted amounts for each Task, and with the approva l of th e Project Manager, funds may be shifted from one Task subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.10.
III. The City will compensate Consultant for the Services performed upon submission of a valid invoice, as described in Section 2.4.
IV. The total compe nsation for the Services shall not exceed the Contract Sum, as provided in Section 2.1 of this Agreement.
01225.0001/863604.2 C1-1
EXHIBIT “C-1”
Task 1 – Hydrology and Hydraulics
Historical hydrology $33,612.61
Hydraulics $77,042.47
Report $19,916.00
Subtotal Task 1: $130,571.08
Task 2 – Feasibility Study
Utility Research (Under Task 5)
ROW Investigation $24,587.09
Preliminary Cost Estimate $12,708.00
Exhibits (x5) $13,484.00
Comparative Matrix $12,700.00
Feasibility Memorandum $13,520.00
Subtotal Task 2: $76,999.09
Task 3 - Survey
Base Map $11,788.00
Aerial Topography $28,650.00
Supplemental Topography $47,784.00
Legal Descriptions $16,400.00
Subtotal Task 3: $104,622.00
Task 4 – Geotechnical Report
Geotechnical Investigations and Report $131,569.85
Subtotal Task 4: $131,569.85
Task 5 - Research
Three Utility Notification Letters $35,510.84
Composive Utility Plan $7,032.00
Potholing (20 Potholes) $42,736.00
Subtotal Task 5: $85,278.84
Task 6 – Permitting
CEQA IS/MND $149,532.00
USACE NEPA $60,570.00
401 Permit $19,182.00
404 Permit $19,648.00
1602 Permit $19,910.00
Section 408 Permission $62,338.00
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SBCPW Encroachment Permit $23,212.00
Subtotal Task 6: $354,392.00
Task 7 – PS&E (30, 65, AND 100% CDs)
General Sheets (3 sheets) $22,676.00
SD Plans $146,186.75
Street Improvements (Pavement, accessibility, S&S) $77,312.19 TS Modification Plan $3,628.00
Existing Control and Demo Plan $53,116.00
Precise Grading Plans $54,924.00
Erosion Control Plans $24,524.00
Structural Improvement Plan $74,466.72
Landscape and Irrigation Plan $68,872.00
Construction Staging/Traffic Control Plans $40,668.11 Technical Specifications $38,332.61
Engineer’s Estimate $39,672.00
SWPPP/PRDs $13,692.00
WQMP $11,356.00
Subtotal Task 7: $669,426.37
Task 8 – Meetings
Monthly Coordination Meetings (12) $35,238.30
Milestone Meetings (5) $20,220.00
Subtotal Task 8: $55,458.30
Task 9 – Bid Support Services
Procurement/Bid Support $18,986.86
Subtotal Task 9: $18,986.86
Task 10 – Construction Support Services
Construction Admin $64,676.42
Record Plan and Closeout $14,984.00
Subtotal Task 10: $79,660.42
Total Professional Fee: $1,706,964.81
01225.0001/863604.2 D-1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services and deliver all work produ cts timely in accordance with the schedule attached hereto as Exhibit “D-1”.
II. The Project M anager may approve e xtensions for performance of the s ervices in accordance with Section 3.2.
01225.0001/863604.2 D1-1
EXHIBIT “D-1”
SCHEDULE