AGENDA
City Council Meeting
Council Chamber, Chowchilla City Hall
130 S. 2nd Street, Chowchilla, CA 93610
Tuesday, August 27, 2024
Closed Session: 3:30 p.m. | Open Session: 4:00 p.m.
Agendas for all City Council meetings are posted at least 72 hours prior to the meeting in the kiosk just outside of City Hall, 130 S. Second St., Chowchilla, CA 93610.
The City of Chowchilla complies with the Americans with Disabilities Act (ADA of 1990). The Council Chambers is accessible to the physically disabled. If you need special assistance, please call (559) 665- 8615, ext. 102 at least 4 days prior to a regular meeting, 1 day for a special meeting.
California Levine Act Statement:
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits any Chowchilla City Council Member from participating in any action related to a license, permit, contract or entitlement for use application if he or she receives any political contributions totaling more than $250 within the previous twelve months, and for twelve months following the date of a final decision, from the business/board or applicant.
The Levine Act also requires a member of the Chowchilla City Council who has received such a contribution to disclose the contribution on the record of the proceeding.
CALL TO ORDER/ROLL CALL
Mayor: Kelly Smith
Mayor Pro Tem: Waseem Ahmed
Council Members: Ray Barragan, John Chavez, Jeff Troost City staff and contract employees present will be recorded in the minutes.
CONSIDERATION OF APPROVAL OF AGENDA
Additions and/or Deletions:
PUBLIC ADDRESS – CLOSED SESSION
This time is reserved for members of the audience to address the City Council on items listed on the Closed Session agenda only. It is recommended that speakers limit their comments to no more than 3 minutes each.
CLOSED SESSION – 3:30 PM
1. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION Significant Exposure to litigation pursuant to Government Code Section 54956.9 (d) (2) or (3) Number of Cases: 1
OPEN SESSION – 4:00 PM
PLEDGE OF ALLEGIANCE
INVOCATION:
CLOSED SESSION REPORT:
City Council Meeting AGENDA August 27, 2024
PRESENTATIONS/WORKSHOP - Section 1
PUBLIC ADDRESS
This time is reserved for members of the audience to address the City Council on items of interest that are not on the agenda and that are within the subject matter jurisdiction of the Council.
It is recommended that speakers limit their comments to no more than 3 minutes each and it is requested that no comments be made during this period on items on the Agenda. Speakers are not allowed to cede their public comment time.
Members of the public who are joining the meeting via Zoom and would like to address the Council on items on the agenda should follow the policy on page 4 of this agenda packet.
The Council is prohibited by law from taking any action on matters discussed that are not on the agenda.
No adverse conclusions should be drawn if the Council does not respond to public comment at this time.
COUNCIL AND STAFF VERBAL REPORTS – Section 2
2.1 COUNCIL VERBAL REPORTS
Legislative, Collaborative Agency, Ad Hoc
2.2 STAFF VERBAL REPORTS
CONSENT CALENDAR – Section 3
All items listed under Consent Calendar are considered to be routine and will be enacted by one motion. For discussion of any Consent Item, it will be made a part of the Regular Agenda at the request of any member of the City Council or any person in the audience.
3.1 Approval of the August 13, 2024 City Council Meeting Minutes (McClendon)
3.2 Consideration and Acceptance of the July 2024 Financial Report (Williams)
3.3 Consideration and Adoption of a City Council Resolution Approving the Master Agreement Between the Madera County Transportation Commission and the City of Chowchilla for the Fiscal Year 2023/2024 Allocation of Regional Surface Transportation Program (RSTP) Exchange Funding and Authorizing the City Administrator or Designee to Sign Necessary Claim Forms to Obtain Future Funding (Rogers)
3.4 Consideration and Adoption of a City Council Resolution Accepting Improvements and Authorizing the Filing of the Notice of Completion for the Prop 68 Grant Project – Pickleball Courts at Edward Ray Park (Rogers)
3.5 Consideration and Approval Regarding Continued Farm Lease of 145.5 Cropland Acre Identified as 4L SZ 10 15, Tract 58, ASCS Farm 2497 (Future City Waste Water Treatment Plant Site) (Pruett)
PUBLIC HEARINGS – Section 4
DEFERRED BUSINESS – Section 5
City Council Meeting AGENDA August 27, 2024
NEW BUSINESS – Section 6
6.1 Consideration and Adoption of a City Council Resolution Approving a Professional Services Agreement Amendment with Precision Civil Engineering for the 2024-2032 Housing Element Allowing an Extension of Time to Complete the Performance of Services and Authorizing the City Administrator or Designee to Execute all Related Documents Thereto (Pruett)
6.2 Consideration and Adoption of a City Council Resolution Authorizing the City to Enter into a Reimbursement Agreement with the California High Speed Rail Authority and Authorizing the City Administrator to Execute any Related Documents Thereto (Rogers)
6.3 Consideration and Adoption of a City Council Resolution Amending the 2024/25 Salary Scale to Include Clerical/Recreation Aid Classification (Wisener)
6.4 Consideration and Adoption of a City Council Resolution Awarding Consultant Services for Airport Engineering Services, and Planning & Environmental Consultant Services to Brandley Engineering, Inc. and Authorizing the City Administrator to Execute the Agreements on Behalf of the City (Rogers)
6.5 Consideration to Appoint a Primary and up to Two Alternate Voting Delegates for the League of California Cities Business Meeting at the 2024 Annual Conference in Long Beach, California (McClendon)
ANNOUNCEMENTS – Section 7
SEP 2 LABOR DAY, CITY OFFICES CLOSED
SEP 10 CITY COUNCIL MEETING, CITY HALL, 4PM
SEP 18 PLANNING COMMISSION MEETING, CITY HALL, 5PM
ADJOURNMENT
I, Joann McClendon, CMC, City Clerk, do hereby declare under penalty of perjury that the foregoing agenda was posted at Chowchilla City Hall, 130 S 2nd Street, Chowchilla, CA and made available for public review on this 22nd day of August, 2024 at or before 5:00pm.
Joann McClendon, CMC, City Clerk
August 27, 2024 City Council Meeting – 4pm
ZOOM LOGIN INSTRUCTIONS
Use the following URL to start Zoom:
https://us06web.zoom.us/j/83616766313?pwd=F7gbBvhaPHabY15BSRU2RWvKjsyvdZ .1
Passcode: 329 136
To participate by phone:
Dial 1-669-444-9171
Webinar ID: 836 1676 6313
Passcode: 329 136
Staff highly recommends that participants log into Zoom 15 minutes before the meeting begins to perform an audio check and ensure they have an optimal internet connection.
Options to participate / view / listen to the meeting:
• If you wish to speak on an item using the Zoom platform on your computer/laptop or smartphone, please use the “raise hand” icon, and you will be unmuted when it is your turn to speak. Please provide your name when unmuted. You can address the Council for up to 3 minutes. • If you are calling into the meeting only (no camera/video) and wish to comment, press *9 to “raise your hand” and *6 to unmute yourself.
Item 3.1
CLICK HERE
TO RETURN TO
THE AGENDA
MINUTES
City Council Meeting
Council Chamber, Chowchilla City Hall
130 S. 2nd Street, Chowchilla, CA 93610
Tuesday, August 13, 2024
Open Session: 4:00 p.m.
CALL TO ORDER/ROLL CALL
Mayor: Kelly Smith
Mayor Pro Tem: Waseem Ahmed
Council Members: Ray Barragan, John Chavez, Jeff Troost City staff and contract employees present: City Administrator Rod Pruett, City Attorney Mary Lerner, Police Chief Jeff Palmer, Fire Chief Fred Gaumnitz, Public Works Director Jason Rogers, Deputy Director of Recreation & Community Engagement Stacy Wisener, Finance Director Kerri Williams, IT System Administrator Carlos Berrocal, City Clerk Joann McClendon
CONSIDERATION OF APPROVAL OF AGENDA
Additions and/or Deletions: Item 3.5, Consideration and Adoption of a City Council Resolution Accepting Improvements and Authorizing the Filing of the Notice of Completion for the Prop 68 Grant Project – Pickleball Courts at Edward Ray Park, was removed from the Consent Calendar.
OPEN SESSION – 4:00 PM
PLEDGE OF ALLEGIANCE
INVOCATION: Pastor David Lucas
PRESENTATIONS/WORKSHOP - Section 1
PUBLIC ADDRESS
No one spoke.
COUNCIL AND STAFF VERBAL REPORTS – Section 2
2.1 COUNCIL VERBAL REPORTS
Legislative, Collaborative Agency, Ad Hoc
Council Member Troost attended the August 6 Citizens Advisory Committee meeting.
Council Member Barragan attended Mark Hamilton’s going away party; and, went to [Madera] County to learn about the new districting rules.
Mayor Smith attended a Chowchilla Task Force meeting. He also attended a backpack giveaway by Valley State Prison and Cornerstone Church that included school supplies, a food giveaway, a bike giveaway, free haircuts, bounce house and snow cones.
2.2 STAFF VERBAL REPORTS
City Council Meeting MINUTES August 13, 2024
Deputy Director of Recreation & Community Engagement Wisener reported that the Star Gazing event went very well and was held at the pickleball court. She is prepping for the August 23 Party in the Park that is turning out to be a huge event.
IT System Administrator Berrocal updated the Council on the status of IT’s projects.
Police Chief Palmer updated Council of departmental stats since the last meeting. he agave a reminder that schools will be open next week, cautioned motorists to drive safely. The Ventura speed signs are up and running as all the LPR’s.
Fire Chief Gaumnitz noted in July the Fire Department received 127 calls.
Public Works Director Rogers reported that the SR 99/233 Interchange project is currently moving forward; he and the City Administrator met with Caltrans and Rancho Calera recently to discuss Right-of-Way acquisition needs. Additionally, staff is working with a consultant to put together a funding application for Local Partnership Program (LPP) competitive grant funds as we expect the state to release a notice of funding availability this month. He and staff have been reviewing recently submitted RFQs and bids related to airport engineering consulting and generators and are looking to have those before Council at an upcoming meeting. Chowchilla Blvd Project Update – pavement rehabilitation and striping has been completed and the road has been reopened.
City Administrator Pruett met with Rancho Calera; QK is filling in until the Community & Economic Development Director position filled (recruitment closes August 31); working with AutoZone for final steps. Due to a proposed annexation, LAFCO is requiring the City to have upon a tax sharing agreement with County.
CONSENT CALENDAR – Section 3
3.1 Approval of the July 23, 2024 City Council Meeting Minutes (McClendon)
3.2 Approval of the August 6, 2024 Special City Council Meeting Minutes (McClendon)
3.3 Consideration and Acceptance of the July 2024 Check Register (Williams)
3.4 Consideration and Acceptance of the Quarterly Fee Waiver Report (Williams)
3.5 Consideration and Adoption of a City Council Resolution Accepting Improvements and Authorizing the Filing of the Notice of Completion for the Prop 68 Grant Project – Pickleball Courts at Edward Ray Park (Rogers)
3.6 Informational Only: Quarterly PMP Report (McClendon) Motion by Council Member Troost, Seconded by Council Member Chavez to Approve the Consent Calendar, as Amended. Motion passed unanimously by roll call vote.
PUBLIC HEARINGS – Section 4
DEFERRED BUSINESS – Section 5
City Council Meeting MINUTES August 13, 2024
NEW BUSINESS – Section 6
6.1 Consideration to Approve the Waiving of Bidding Process per Chowchilla Municipal Code Section 4.04.105 (Palmer)
Motion by Council Member Barragan, Seconded by Council Member Chavez to Approve the Waiving of Bidding Process per Chowchilla Municipal Code Section 4.04.105. Motion passed unanimously by roll call vote.
6.2 Consideration and Adoption of a City Council Resolution Approving Cook’s Communications to Complete the Public Safety Radio Upgrade (Palmer) Motion by Council Member Troost, Seconded by Mayor Pro Tem Ahmed to Approve City Council Resolution #45-24, Approving Cook’s Communications to Complete the Public Safety Radio Upgrade. Motion passed unanimously by roll call vote.
6.3 Consideration and Adoption of a City Council Resolution Awarding the Prop 218 Rate Studies: Water, Sewer, Storm Drain & Solid Waste, to Lechowicz & Tseng Municipal Services (Rogers)
Motion by Council Member Barragan, Seconded by Council Member Troost to Approve City Council Resolution #46-24, Awarding the Prop 218 Rate Studies: Water, Sewer, Storm Drain & Solid Waste, to Lechowicz & Tseng Municipal Services. Motion passed unanimously by roll call vote.
ANNOUNCEMENTS – Section 7
AUG 21 PLANNING COMMISSION MEETING, CITY HALL, 5PM
AUG 23 COMMUNITY PARTY W/ MARIE WILSON BAND, VETERANS PARK, 6-10PM
ADJOURNMENT
Mayor Smith adjourned the August 13, 2024 City Council Meeting at 4:25 p.m.
ATTEST: APPROVED:
Joann McClendon, CMC, City Clerk Mayor Kelly Smith
REPORT TO THE CITY COUNCIL
Item 3.2
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: Consent
SUBJECT: Consideration of Monthly Financial Statements
PREPARED BY: Kerri Williams, Finance Director
ATTACHMENTS: July 2024 Budget vs Actual and Balance Sheet
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Approve the July 2024 Financial Statements shown in the attachment.
BACKGROUND:
Staff provides Council with monthly financial information as an ongoing financial status update.
REASON FOR RECOMMENDATION:
The monthly financial statements consist of a Budget vs Actual and a Balance Sheet for the General Fund. The Budget vs Actual shows the current Month (Period Activity) and current Year (Fiscal Activity) Revenues and Expenses by Department in summary form compared to the current year Original and Current budgets. The Balance Sheet shows the Assets, Liabilities and Fund Balance at the time the report is generated. This provides an overview of cash, amounts owed to the City, amounts the City owes and the fund balance at a specific point in time.
The financial statements are being presented as an overview of the City’s finances and are not meant to be a comprehensive in-depth review. As a reference to compare to the percent remaining column in the report, the percentage of the year remaining 91.67%.
If the percent remaining column for Revenues is higher than the above-mentioned percentage, that is an unfavorable variance and should be explained if significant. If the percent remaining column for Expenses is lower than the above-mentioned percentage, that is an unfavorable variance and should be explained if significant.
If there are questions regarding the actual amounts or budget vs actual variances, please forward your questions to me in enough time before the meeting for staff to research them.
FISCAL IMPACT: Revenues
General Administration- Property tax and VLF, which are 2 of our biggest revenues, are only received 2 times a year in February and May, we have yet to receive a distribution. We are teetered which means we do not have to worry about delinquencies, because the County pays us and goes after the delinquencies themselves. Sales tax payments run a couple months behind and we have yet to receive July’s payment.
Sales tax is our 2nd largest revenue.
Police Department- Budgeted revenue is from school reimbursements for SRO service, which we have not billed the schools yet as we bill them annually in September. Also, it has $1.3M Transfer-in from Measure N for the RIMS Software, recruitment and retention of employees, communications upgrade, recording system, and fleet/upfitting costs.
Fire Department- This revenue is for fines/penalties and fire inspection fees which is completed throughout the year.
Community & Economic Development- This will fluctuate as building permits are pulled. We budgeted for the following projects like Rancho Calera, Solar Permits, 2 commercial facilities and various other projects within the City. So far, we have Self Help building their part of the Montgomery Farms lots. We still have other miscellaneous permits for other items that are happening as well. This also includes $23k of REAP 1.0 Funding.
Parks and Facilities- $31k of this is from a grant that we have not spent yet so we have not requested reimbursements. There is a transfer in of $88k from DIF Fees to cover the Pickleball court. The rest is overhead allocations from the LLMD that happen at the end of the year.
Community Relations- Revenues are from sports program reimbursements, park pavilion rentals and donations.
Expenses
General Services- Budgeted Expenses are more than usual as of right now due to the POB Transfer out.
Police Department- Budgeted Expenses are more than usual as of right now due to the POB Transfer out.
Fire Department- Budgeted Expenses are more than usual as of right now due to unplanned construction costs being carried over from 23/24.
Community Relations- Budgeted Expenses are more than usual as of right now due to the purchase of Archive Social Subscription.
ALTERNATIVES:
Pull the item for further discussion.
ACTIONS FOLLOWING APPROVAL:
None.
8/12/2024 5:13:10 PM Page 1 of 3
Budget Report
Chowchilla, CA Group Summary
For Fiscal: 2024-2025 Period Ending: 07/31/2024
Fiscal
Activity
Variance
Favorable
(Unfavorable)
Period
Activity Account Typ…
Current
Total Budget
Original
Total Budget
Percent
Remaining
Dept: 1600 - General Administration
Revenue 10,268,367.00 10,268,367.00 13,939.26 13,939.26 -10,254,427.74 99.86% Expense 292,415.00 292,415.00 25.74 25.74 292,389.26 99.99% Dept: 1600 - General Administration Surplus (Deficit): 9,975,952.00 9,975,952.00 13,913.52 13,913.52 -9,962,038.48 99.86% Dept: 1605 - City Council
Revenue 1,775.00 1,775.00 142.20 142.20 -1,632.80 91.99% Expense 104,452.00 104,452.00 1,114.58 1,114.58 103,337.42 98.93% Dept: 1605 - City Council Surplus (Deficit): -102,677.00 -102,677.00 -972.38 -972.38 101,704.62 99.05% Dept: 1610 - City Clerk
Expense 347,984.00 347,984.00 29,963.87 29,963.87 318,020.13 91.39% Dept: 1610 - City Clerk Total: 347,984.00 347,984.00 29,963.87 29,963.87 318,020.13 91.39% Dept: 1615 - City Attorney
Expense 300,000.00 336,000.00 36,000.00 36,000.00 300,000.00 89.29% Dept: 1615 - City Attorney Total: 300,000.00 336,000.00 36,000.00 36,000.00 300,000.00 89.29% Dept: 1705 - General Services
Expense 2,068,037.00 2,068,037.00 556,279.39 556,279.39 1,511,757.61 73.10% Dept: 1705 - General Services Total: 2,068,037.00 2,068,037.00 556,279.39 556,279.39 1,511,757.61 73.10% Dept: 1710 - City Administration
Expense 456,792.00 456,792.00 24,206.06 24,206.06 432,585.94 94.70% Dept: 1710 - City Administration Total: 456,792.00 456,792.00 24,206.06 24,206.06 432,585.94 94.70% Dept: 1712 - City Property - Rents
Revenue 165,262.00 165,262.00 0.00 0.00 -165,262.00 100.00% Expense 53,395.00 53,395.00 3,528.93 3,528.93 49,866.07 93.39% Dept: 1712 - City Property - Rents Surplus (Deficit): 111,867.00 111,867.00 -3,528.93 -3,528.93 -115,395.93 103.15% Dept: 1720 - Finance Department
Revenue 19,348.00 19,348.00 759.75 759.75 -18,588.25 96.07% Expense 918,252.00 918,252.00 75,768.77 75,768.77 842,483.23 91.75% Dept: 1720 - Finance Department Surplus (Deficit): -898,904.00 -898,904.00 -75,009.02 -75,009.02 823,894.98 91.66% Dept: 2610 - Police Department
Revenue 1,691,430.00 1,691,430.00 979.00 979.00 -1,690,451.00 99.94% Expense 6,063,553.00 6,063,553.00 742,482.13 742,482.13 5,321,070.87 87.75% Dept: 2610 - Police Department Surplus (Deficit): -4,372,123.00 -4,372,123.00 -741,503.13 -741,503.13 3,630,619.87 83.04% Dept: 2705 - Fire Department
Revenue 5,500.00 5,500.00 581.40 581.40 -4,918.60 89.43% Expense 393,380.00 393,380.00 67,199.48 67,199.48 326,180.52 82.92% Dept: 2705 - Fire Department Surplus (Deficit): -387,880.00 -387,880.00 -66,618.08 -66,618.08 321,261.92 82.83% Dept: 4705 - Community & Economic Development
Revenue 590,804.00 590,804.00 58,597.77 58,597.77 -532,206.23 90.08% Expense 1,173,295.00 1,173,295.00 60,596.00 60,596.00 1,112,699.00 94.84% Dept: 4705 - Community & Economic Development Surplus (Deficit): -582,491.00 -582,491.00 -1,998.23 -1,998.23 580,492.77 99.66% Dept: 6610 - Community Pool (OLD)
Revenue 1,500.00 1,500.00 1,393.00 1,393.00 -107.00 7.13% Expense 25,504.00 25,504.00 6,555.60 6,555.60 18,948.40 74.30% Dept: 6610 - Community Pool (OLD) Surplus (Deficit): -24,004.00 -24,004.00 -5,162.60 -5,162.60 18,841.40 78.49% Dept: 6615 - Senior Services
Expense 43,560.00 43,560.00 668.43 668.43 42,891.57 98.47% Dept: 6615 - Senior Services Total: 43,560.00 43,560.00 668.43 668.43 42,891.57 98.47% Budget Report For Fiscal: 2024-2025 Period Ending: 07/31/2024 8/12/2024 5:13:10 PM Page 2 of 3
Fiscal
Activity
Variance
Favorable
(Unfavorable)
Period
Activity Account Typ…
Current
Total Budget
Original
Total Budget
Percent
Remaining
Dept: 6620 - Parks & Facilities
Revenue 198,847.00 198,847.00 0.00 0.00 -198,847.00 100.00% Expense 885,598.00 885,598.00 58,004.00 58,004.00 827,594.00 93.45% Dept: 6620 - Parks & Facilities Surplus (Deficit): -686,751.00 -686,751.00 -58,004.00 -58,004.00 628,747.00 91.55% Dept: 6625 - Community Relations
Revenue 22,500.00 22,500.00 40.00 40.00 -22,460.00 99.82% Expense 238,224.00 238,224.00 21,121.57 21,121.57 217,102.43 91.13% Dept: 6625 - Community Relations Surplus (Deficit): -215,724.00 -215,724.00 -21,081.57 -21,081.57 194,642.43 90.23% Report Surplus (Deficit): -399,108.00 -435,108.00 -1,607,082.17 -1,607,082.17 -1,171,974.17 -269.35% Budget Report For Fiscal: 2024-2025 Period Ending: 07/31/2024 8/12/2024 5:13:10 PM Page 3 of 3
Fund Summary
Fiscal
Activity
Variance
Favorable
Fund (Unfavorable)
Period
Activity
Current
Total Budget
Original
Total Budget
100 - General Fund -399,108.00 -435,108.00 -1,607,082.17 -1,607,082.17 -1,171,974.17 Report Surplus (Deficit): -399,108.00 -435,108.00 -1,607,082.17 -1,607,082.17 -1,171,974.17 8/12/2024 5:09:57 PM Page 1 of 1
Balance Sheet
Chowchilla, CA Account Summary
As Of 07/31/2024
Account Name Balance
Fund: 100 - General Fund
Assets
100-0100-0201 Petty Cash 500.00
100-0100-0202 Pre-Paid Postage Account 4,457.20
100-0100-0206 Cash Drawer 1,700.00
100-0100-0219 Lease Receivable 135,233.32
100-0100-0221 A/R - Non Governmental -68,956.67
100-0100-0222 A/R - Intergovernmental 11,222.02
100-0100-0224 A/R MODULE ONLY RECEIVALBLES 123,803.09
100-0100-0225 Accounts Receivable-RDA -24.89
100-0100-0226 Advance to Other Funds 410,031.56
100-0100-0227 Liens Receivables General Fund 179,687.82 100-0100-0228 Pending Charges or Refunds -1.00
100-0100-0291 Prepaid Expenses 13,126.76
100-0100-1900 Claim On Cash 7,012,200.24
Total Assets: 7,822,979.45 7,822,979.45
Liability
100-0200-0422 Bonds for Work-Refundable 2,000.00
100-0200-0425 Use Sale Tax 132.91
100-0200-0480 Deferred Revenue 162,921.75
100-0200-0482 Unavailable Lease Revenue 76,235.22
100-0200-2901 Accounts Payable Pending 82,207.89
Total Liability: 323,497.77
Equity
100-0300-0601 Fund Balance 7,770,331.57
100-0300-0604 Reserve for Contingencies 910,223.00
100-0300-0605 Designated for Prepaid Items 239.50
100-0300-0611 Reserve for L/T A/R 418,794.59
100-0300-0615 SB1186 6,975.19
Total Beginning Equity: 9,106,563.85
Total Revenue 76,432.38
Total Expense 1,683,514.55
Revenues Over/Under Expenses -1,607,082.17
Total Liabilities, Equity and Current Surplus (Deficit): 7,822,979.45 Total Equity and Current Surplus (Deficit): 7,499,481.68
REPORT TO THE CITY COUNCIL
Item 3.3
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: Consent
SUBJECT: Consideration of a Resolution and Master Agreement between Madera County Transportation Commission (MCTC) and the City of Chowchilla for the Fiscal Year (FY) 2023/2024, in regard to the allocation of RSTP Exchange Funding
PREPARED BY: Jason Rogers, Director of Public Works
ATTACHMENTS: Resolution, 2023/2024 Master Agreement
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Approve the Resolution and Master Agreement between Madera County Transportation Commission (MCTC) and the City of Chowchilla for the Fiscal Year 2023/2024 funds.
BACKGROUND:
The Regional Surface Transportation Program (RSTP) was established by California state Statute utilizing Surface Transportation Program Funds per Section 133 of Title 23 of the United States Code. This program provides flexible funding that may be used by States and localities for projects to preserve and improve the conditions and performance on any Federal-aid highway, bridge and tunnel projects on any public road, pedestrian and bicycle infrastructure, and transit capital and intercity passenger projects. RSTP funds cannot be used on a road Federally functionally classified as a local road, and can only be used on roads classified as: minor collector, major collector, minor arterial, principal arterial, freeway or interstate.
MCTC allocates RSTP funds annually to the City of Chowchilla. The Department of Transportation (DOT) requires an annual approval of a resolution authorizing the use of RSTP funds as well as confirmation of eligible or qualified expenditures which must be requested by application for reimbursement. The Master Agreement commits the City to the terms of these requirements set forth and monitored by MCTC.
REASON FOR RECOMMENDATION:
In order to receive RSTP funds, the Department of Transportation in conjunction with MCTC requires an annual renewal of the Master Agreement to authorize the distribution of RSTP funds for FY 2023/2024.
FISCAL IMPACT:
None
ALTERNATIVES:
Not to approve the agreement between MCTC and the City of Chowchilla and not receive funds from RSTP.
ACTIONS FOLLOWING APPROVAL:
Upon signing of the Resolution and Master Agreement, the Master Agreement is to be submitted to MCTC.
COUNCIL RESOLUTION # -23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA APPROVING THE
MASTER AGREEMENT BETWEEN THE MADERA COUNTY TRANSPORTATION COMMISSION AND THE CITY OF CHOWCHILLA FOR THE FISCAL YEAR 2023/2024 ALLOCATION OF REGIONAL
SURFACE TRANSPORTATION PROGRAM (RSTP) EXCHANGE FUNDING AND AUTHORIZING
CITY ADMINISTRATOR OR DESIGNEE TO SIGN NECESSARY CLAIM FORMS TO OBTAIN
FUTURE FUNDING
WHEREAS, the City of Chowchilla is entitled to receive $193,609 of Regional Surface Transportation Program (RSTP) funds in the 2022/2023 Fiscal Year; and, WHEREAS, the City of Chowchilla has reserved $193,609 for future projects; and, WHEREAS, said allocations are available to fund qualified and eligible expenditures incurred within the Transit and Street Maintenance Activities of the City as are reflected in Exhibit A to the Attached Master Agreement; and,
WHEREAS, to receive its annual allocation of RSTP funds, the City must agree to the terms presented in the attached Master Agreement and subsequently submit funding applications seeking reimbursement for the expenditure of funds on eligible projects.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct
2. The Master Agreement between Madera County Transportation Commission and the City of Chowchilla regarding the use of RSTP allocations for the 2023/2024 fiscal year is hereby approved as shown in Attachment A, which is incorporated by reference herein.
3. The City Administrator or designee is authorized to complete and sign future funding applications necessary to obtain reimbursement of funds expended on eligible projects.
4. The Resolution shall take effect immediately.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 27th day of August 2024 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor Kelly Smith
ATTEST:
Joann McClendon, CMC, City Clerk
1 MASTER AGREEMENT BETWEEN THE
MADERA COUNTY TRANSPORTATION COMMISSION
AND THE CITY OF CHOWCHILLA
FOR THE FISCAL YEAR 2023/24 ALLOCATION OF RSTP EXCHANGE FUNDING This agreement is made on August 27, 2024 by and between the City of Chowchilla, a public body, hereinafter referred to as “Recipient,” and the Madera County Transportation Commission, hereinafter referred to as “MCTC.”
WHEREAS, the MCTC is the state-designated Regional Transportation Planning Agency for Madera County; and
WHEREAS, as authorized by section 182.6(g) of the Streets and Highways Code, the MCTC has entered into a separate agreement with the State of California, through the Department of Transportation (Caltrans), to assign a defined portion of its annual Regional Surface Transportation Program (RSTP) apportionment to Caltrans in exchange for state funds for specified fiscal year(s); and
WHEREAS, the MCTC is authorized to use these exchanged funds (hereinafter RSTP Exchange Funds) to assist local agencies to promote projects which otherwise qualify for RSTP funds; and WHEREAS, it is contemplated by MCTC and the Recipient that the amount of funding and the projects designated in Exhibit A may change from time to time as set forth below; and WHEREAS, the MCTC has requested the Madera County Auditor-Controller to establish a separate fund for the Federal Apportionment Exchange Program and such a separate fund has been established.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
A. The MCTC agrees to allocate RSTP Exchange Funds paid by Caltrans under the Federal Apportionment Exchange Program only for projects as authorized under sections 133(b) and 133 (c) of Title 23, United States Code and Article XIX of the California State Constitution.
B. The Recipient agrees to use RSTP Exchange Funds only for the RSTP Exchange eligible project(s) described in Exhibit A.
C. The Recipient agrees to reimburse funds back to MCTC if it is determined that RSTP Exchange Funds were used for ineligible projects.
2 RSTP Exchange Agreement
1. ADMINISTRATIVE POLICIES
A. The projects described in Exhibit A, and the amounts allocated therefore, may be amended from time to time without changing the rest of this Master Agreement.
B. The Recipient agrees to submit a RSTP Monitoring report to MCTC every 6 months describing the progress towards completion for all projects listed in Exhibit A.
C. The Recipient agrees to mention MCTC’s role in funding the project in any press releases or media events held by the Recipient to promote a funded project.
D. The MCTC agrees to reimburse the Recipient within 30 days of receipt of an accurately completed claim form from the Recipient. The Recipient shall be reimbursed for actual incurred costs that are supported with documentation.
E. The Recipient agrees to cause the completion of the project(s) within three years from the date funds were approved, as recorded in Exhibit A. Failure to complete the project(s) in a timely basis shall allow MCTC to refuse reimbursement and to reprogram such funds for other purposes.
2. COST PRINCIPLES
A. Recipient agrees to comply with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards.
B. Recipient agrees to require its contractors and subcontractors to:
(1) use Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., to determine the allowability of individual project cost items; and
(2) comply with Federal administrative procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards.
3. THIRD PARTY CONTRACTING
A. Recipient shall not award a construction contract over $10,000 or other contracts over $25,000 on the basis of a noncompetitive negotiation for work to be performed using Funds without the prior written approval of Caltrans. This provision shall not apply to professional service contracts of the type which are required to be procured in accordance with Government Code Sections 4525 (d), (e), and (f).
3 RSTP Exchange Agreement
B. Recipient agrees that travel and per diem reimbursements and third-party contract reimbursements to subcontractors will be allowable as project costs only after those costs are incurred and paid for by the subcontractors and only if consistent with Paragraph 6, below.
C. In addition to the above, the audit requirements of third party contractor/ consultants with Recipient shall be consistent with Local Assistance Procedures Manual as published by Caltrans.
4. ACCOUNTING SYSTEM
Recipient, its contractors and subcontractors, shall establish and maintain an accounting system and records that properly accumulate and segregate expenditures by line item.
The accounting system of Recipient, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment claims.
5. RIGHT TO AUDIT
For the purpose of verifying that funds paid hereunder are properly accounted for and proceeds are expended in accordance with the terms of this agreement, the Recipient, its contractors and subcontractors each agrees to grant Caltrans and/or the MCTC auditors access to the Recipient’s books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including but not limited to, the costs of administering those various contracts. All documents shall be made available for inspection by authorized Caltrans or MCTC agents at any time during project development and for a four-year period from date of completion of project or one year after the audit is completed or waived by Caltrans, whichever is later.
6. TRAVEL AND SUBSISTENCE
Payments to contractors and subcontractors for travel and subsistence expenses of Recipient forces and/or its contractors or subcontractors, claimed for reimbursement or applied as local match credit, shall not exceed rates authorized to be paid exempt nonrepresented State employees under current State of California Department of Human Resources (CalHR) rules. If the rates invoiced are in excess of those authorized CalHR rates, then Recipient is responsible for the cost difference and any overpayments shall be reimbursed to the MCTC on demand.
7. PROJECT COMPLETION
Recipient agrees to provide to the MCTC a short report summarizing total project costs and milestones, including before and after photos of the project, for each project within sixty (60) days of completion.
4 RSTP Exchange Agreement
8. GOVERNING LAWS
This Agreement shall be construed and enforced according to the laws of the State of California, and the parties hereby agree that the County of Madera shall be the proper venue for any dispute arising hereunder.
9. CONFLICT OF INTEREST
Recipient warrants that it presently has no interest and shall not acquire any interest during the term of this Agreement, which would directly or indirectly conflict in any manner or to any degree with its full and complete performance of all services under this Agreement.
10. CONSTRUCTION OF AGREEMENT
The parties agree that each party has fully participated in the review and revision of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any exhibit or amendment. To that end, it is understood and agreed that this Agreement has been arrived at through negotiation, and that neither party is to be deemed the party which prepared this Agreement within the meaning of Civil Code Section 1654. Section and paragraph headings appearing herein are for convenience only and shall not be used to interpret the terms of this Agreement.
11. WAIVER
Any waiver of any term or condition hereof must be in writing. No such waiver shall be construed as a waiver of any other term or condition herein.
12. SUCCESSORS AND ASSIGNS
This Agreement and all rights, privileges, duties and obligations hereunder, to the extent assignable or delegable, shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns and heirs.
13. TIME IS OF THE ESSENCE
The parties mutually acknowledge and agree that time is of the essence with respect to every provision hereof in which time is an element. No extension of time for performance of any obligation or act shall be deemed an extension of time for performance of any other obligation or act, nor shall any such extension create a precedent for any further or future extension.
14. EXECUTION OF AGREEMENT
Any individual executing this Agreement on behalf of an entity represents and warrants that he or she has the requisite authority to enter into this Agreement on behalf of such entity and to bind the entity to the terms and conditions hereof. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 5 RSTP Exchange Agreement
15. ENTIRE AGREEMENT
This document, including all exhibits hereto, constitutes the entire agreement between the parties, and supersedes any and all prior written or oral negotiations and representations between the parties concerning all matters relating to the subject of this Agreement.
16. TERMINATION DATE
This Agreement shall remain in effect for a period of three (3) years from the date of this Agreement.
17. AMENDMENTS
Any changes to Exhibit A of the Agreement requested by the Recipient shall be implemented by a written amendment to Agreement and approved by both parties.
IN WITNESS WHEREOF, MCTC and Recipient execute this Agreement as follows:
MADERA COUNTY TRANSPORTATION COMMISSION
_________________________________ ___________
Patricia Taylor Date
Executive Director
Recipient: City of Chowchilla
_______________________________ ___________
Name Date
Title
Approved as to Form:
_______________________________ ___________
Attorney Date
___________________
REPORT TO THE CITY COUNCIL
Item 3.4
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TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: Consent
SUBJECT: Approval of a Resolution Accepting the Improvements and Authorizing Filing of the Notice of Completion for the Prop 68 Grant Project – Pickleball Courts at Edward Ray Park
PREPARED BY: Noel Azevedo, Administrative Analyst
APPROVED BY: Jason Rogers, Public Works Director
ATTACHMENTS: Resolution
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
City Council adopt a resolution accepting the improvements and authorizing filing of the Notice of Completion for the Prop 68 Grant Project – Pickleball Courts at Edward Ray Park.
BACKGROUND:
On December 12, 2023, the City entered into a construction services agreement with JT2 Inc dba Todd Companies to install pickleball courts and lighting at Edward Ray Park.
As authorized by City council, construction was started by JT2 Inc dba Todd Companies shortly thereafter and was completed by July 2024.
REASON FOR RECOMMENDATION:
The Contractor, JT2 Inc dba Todd Companies, has completed the work required for the Project. The City’s Public Works Department has inspected the improvements required by the Project and all of the improvements have been completed. The City must accept the improvements and file the Notice of Completion in order to closeout the Project.
FISCAL IMPACT:
The Council approved budget for the project and final costs is as follows:
Council Approved Budget
Description Cost
Construction $192,750
Contingency, 10% $19,275
Planning, Design, Construction Management/Inspection $55,230 TOTAL $267,255
Project Costs
Work Description Final Closeout Cost
Planning, Design, Construction Management/Inspection $ 59,328 Construction $192,750
Change Order No. 1 $ 2,004
Total $254,082
Savings / (Deficit) from Approved Budget $ 13,173
Following closeout of the Project, funding for the project is as follows:
Funding Source Cost
Grant: Prop 68 $177,952
Park Development Impact Fees $ 76,130
TOTAL $254,082
ALTERNATIVES:
None.
ACTIONS FOLLOWING APPROVAL:
1. Filing of Notice of Completion with Madera County Recorder.
2. Release of 5% retention in the amount of $9,737.70 to JT2 dba Todd Companies after 35-day retention holding period.
COUNCIL RESOLUTION NO # -24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA
ACCEPTING IMPROVEMENTS AND AUTHORIZING FILING OF THE NOTICE OF COMPLETION FOR THE PROP 68 GRANT PROJECT – PICKLEBALL COURTS AT EDWARD RAY PARK WHEREAS, JT2 Inc dba Todd Companies, has completed the work for the Prop 68 Grant Project - Pickleball Courts at Edward Ray Park Project; and
WHEREAS, the City’s Public Works Inspector has inspected the improvements required by the City and all improvements required by the City have been completed; and WHEREAS, the Director of Public Works recommends acceptance of the Prop 68 Grant Project - Pickleball Courts at Edward Ray Park Project and requests City Council to authorize the Director of Public Works to record the Notice of Completion for the Project.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct.
2. The City Council accepts the Prop 68 Grant Project - Pickleball Courts at Edward Ray Park Project.
3. The Director of Public Works is authorized to record the Notice of Completion.
4. The Finance Department is authorized to release retention to JT2 Inc dba Todd Companies
5. This resolution is effective immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 27th day of August, 2024 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Kelly Smith, Mayor
ATTEST:
Joann McClendon, CMC
City Clerk
REPORT TO THE CITY COUNCIL
Item 3.5
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THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: Consent
SUBJECT: Consideration and Approval Regarding Continued Farm Lease of 145.5 Cropland Acres Identified as 4L SZ 10 15, Tract 58, ASCS Farm 2497 (Future City Waste Water Treatment Plant Site)
PREPARED BY: Rod Pruett, City Administrator
ATTACHMENTS: Lease Agreement
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the City Council approve the lease agreement of 145.5 cropland acres with Fagundes Family Partnership.
BACKGROUND:
The City owns 160 acres on the southwest corner of Road 11 and Avenue 23 ½ that was purchased in 2008 for a future Wastewater Treatment Plant. The construction of the new Treatment Plant has been delayed by financial constraints. It may be several years before a Treatment Plant is built. It is possible that the City will never use the property for a Treatment Plant.
The property was advertised for lease proposals back in 2009. The City received two proposals from two farming operations. Fagundes Brothers Dairy #2 submitted the proposal that generated the most revenue for the City. When that lease term expired, the City once again advertised for lease proposals. On April 8, 2014, the City Council approved Resolution #42-14, approving a lease agreement of the cropland with the Fagundes Family Partnership. This current lease expires October 31, 2024.
REASON FOR RECOMMENDATION:
The Fagundes Family Partnership has expressed desire to continue leasing the 145.5 cropland acres.
FISCAL IMPACT:
The City will receive rent from the property and the tenant will be obligated to pay Chowchilla Water District taxes and property taxes.
ALTERNATIVES:
Deny the lease agreement.
ACTIONS FOLLOWING APPROVAL:
Obtain lease agreement signatures.
1 AGRICULTURAL LEASE
This Agricultural Lease ("Lease") is entered into as of October 31, 2024 ("Effective Date") between the City of Chowchilla (“City” and/or “Lessor”) and the Fagundes Dairy dba TF Farms (“Lessee”) (collectively the “Parties”) with respect to the following recitals which are a substantive part of the Agreement.
RECITALS
A. Lessor owns certain real property and improvements located in the County of Madera, State of California, particularly described as follows and diagramed in Exhibit A:
Identifier – 4L SZ 10 15
Tract #58
ASCS Farm #2497
Cropland Acres 145.5
City has no current need for use of the Premises.
B. Lessee desires to lease the Premises for farming purposes, and City is agreeable to leasing the Premises to Lessee for said purposes, subject to the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
1. Lease Term. The initial term of this Lease shall be October 31, 2024 through October 31, 2025 (“Initial Term”). Thereafter, the Lease shall automatically renew for four (4) one-year terms, unless either party gives the other party thirty (30) days’ advance written notice that the Lease shall not be renewed for the following one-year term.
2. Rent. Rent for the Premises shall be $22,465 per year. Payment of the entire rental amount shall be due and payable on or before the first day of each lease period, beginning on October 31, 2024.
3. Use of Premises. The Premises shall be used only for farming. No other uses shall be permitted except ancillary uses.
4. Farming Costs. Lessee shall be responsible for all costs associated with farming on the Premises, including all temporary fencing, utility, and repair costs, and shall be solely responsible for supplying water to the Premises.
5. Condition of Premises. City makes no representation or warranty with respect to the condition of the Premises or its fitness or availability for any particular use, and shall not be liable for any latent or patent defect therein. This Lease shall be subject to any existing rights of others, including, but not limited to, easements and rights of way not otherwise condemned by the Lessor. Lessee acknowledges that all improvements on the Premises are the property of City, and shall not remove or alter any fixtures or trees without City’s express written permission. 2 Lessor shall have the right to enter upon and inspect the condition of the Premises at any time provided Lessor does not interfere with Lessee’s use of the Premises.
6. Payment of Property Taxes and Assessments. The parties acknowledge that as public property the Premises are currently exempt from property taxes. Notwithstanding anything contained herein to the contrary, Lessee’s possession and use of the Premises under this Lease may be determined to create a taxable “possessory interest” in said Premises in Lessee, and Lessee may be subject to the assessment of real property taxes based upon such a possessory interest.
Lessee shall be solely responsible for the payment of any and all such property taxes levied on such interest, including any penalties and interest in connection therewith. Likewise, Lessee shall be responsible for the payment of any property, business and other taxes or assessments levied with respect to Lessee’s use of the Premises during the Lease term.
7. No Waste or Nuisance Upon Premises. Lessee shall ensure that its activities will not create waste to or a nuisance upon the Premises or any other liability arising from the use of the Premises by Lessee. If Lessee uses, or permits the deposit of hazardous materials, as defined under State, Federal, or local law, or otherwise creates waste or a nuisance, Lessee shall bear the obligation and expense to fully remediate the Premises to the condition existing at the time of commencement of this Lease.
8. No liens or encumbrances. Lessee shall neither take nor permit any action that would allow for a lien or encumbrance to be placed upon the Premises, including deeds of trust and fixture financing statements on the Premises. Lessee may continue to encumber personal property provided no lien, such as a UCC-1 fixture filing, attaches to the Premises.
9. No Hazardous Materials Allowed. Lessee’s use of the property shall comply in all material respects with all Hazardous Materials Laws. Lessee shall not cause or permit a release of any hazardous material on, at, in, under, above, to, from or about any of the Premises.
10. Indemnification. Lessee covenants and agrees to indemnify, defend and hold harmless City, its officers, employees, agents, and volunteers against any loss, cost, expense, damage, charge or liability (including but not limited to those related to hazardous materials), including attorneys’ fees, connected with Lessee’s use and possession, of the Premises, or operations conducted thereon by Lessee, its agents, contractors, or employees. These indemnification provisions shall survive the termination date of the Lease.
11. Liability Insurance. During the term of this Lease and any extension thereof, Lessee shall, at its expense, obtain and keep in force a policy or policies of comprehensive general liability insurance providing a minimum combined single limit coverage of one million dollars ($1,000,000) for the defense of lawsuits and the payment of damages arising from Lessee's operation, condition, use, or occupancy of the Premises. Such insurance shall be written on a per-accident or per occurrence basis with respect to bodily injury, sickness or disease, and death to any person, and property loss, damage, and destruction. Lessee agrees to furnish to City annually a certificate of insurance providing evidence of the above liability insurance. The certificate of insurance shall contain a provision that City shall be given written notice 30 calendar days in advance of cancellation or any material reduction in this liability insurance policy coverage.
12. Assignment. Lessee shall not assign or sublet any of its obligations, rights, or duties under this 3 Lease, nor sublet the Premises or any part thereof.
13. Default and Remedies. If a party breaches any of its obligations under this Lease, the party alleging a breach of the Lease shall send a notice of default to the other party pursuant to section 16. The breaching party shall have five (5) days to cure the breach and, if not cured within said period (or such extended period as the Parties may agree so long as the breaching party continues to cure the breach), the nonbreaching Party may pursue its remedies at law, or as permitted by this Lease. If Lessee breaches any of its obligations and does not cure the breach within the time permitted under this Lease, then City may terminate the Lease and reclaim possession of the Premises without further notice or obligation to Lessee. The remedies given to each party shall be cumulative. The exercise of any one remedy by either party shall not waive that party's right to any other remedy.
14. Unlawful Detainer. This Lease shall entitle City to institute unlawful detainer proceedings as provided by law. In the event of a breach of any section of this Lease, City shall be entitled to serve upon Lessee a three day notice to quit the Premises.
15. Modification. At any time during the term of this Lease, the Parties may mutually agree in writing to amend, supplement, terminate, or otherwise modify this Lease.
16. Waiver. No waiver of any default shall affect or alter this Lease, which shall continue in full force and effect. No waiver shall affect the respective rights of City or Lessee with respect to any other then-existing or subsequent default.
17. Compliance with Laws; Interpretation. Both Parties agree to observe and obey all local, state or federal laws, ordinances, rules, statutes and regulations now in effect or promulgated in the future with respect to the use of the Premises and activities conducted thereon. Neither party shall use or permit the Premises to be used for any purpose or purposes other than the purpose or purposes for which the Premises are hereby leased.
18. Notice. Any and all notices or other communications required or permitted by this Lease or by law to be delivered to, served on, or given to either party to this Lease shall be in writing and shall be deemed properly delivered to such party at the earliest of (i) the date actually received; (ii) 3 business days after deposit in the United States mail, postage prepaid, certified or registered, addressed to the respective party at the address identified below; or (iii) 1 business day after deposit with a mail service, whether United States mail, or a private company, which guarantees next-business-day delivery. Either party may change its address for purposes of notice by giving written notice of such change of address, which shall become effective 5 business days after giving notice thereof.
All notices given pursuant to this Lease shall be delivered to:
Lessee: City:
Fagundes Dairy City Administrator
dba TF Farms City of Chowchilla
PO Box 2717 130 S. 2nd Street
Merced, CA 95344 Chowchilla, CA 93610
Telephone: (209) 383-6046 Telephone: (559) 665-8615
4 19. End of Lease Term. Upon expiration or other termination of this Lease, Lessee shall immediately quit and surrender the Premises to City in good order and condition, ordinary wear and tear excepted, and shall remove all of Lessee’s personal property and also any trash, debris, chemicals or hazardous materials from the Premises. All fixtures shall remain on the Property unless otherwise agreed to in writing between the Parties. No holding over (Tenant at sufferance) shall be permitted. Any of Lessee’s equipment or other possessions not so removed shall be deemed abandoned and City may use or dispose of them, without notice or obligation to Lessee, as City deems appropriate. Lessee shall be responsible for all moving and relocation costs.
20. Miscellaneous. The headings of this Lease are for purposes of reference only and shall not limit or define the meaning hereof. City may post the Premises with signage indicating the intended use of the Premises so long as it does not impair Lessee’s farming activities.
21. Execution in Counterpart; Facsimile Signatures. The Parties may sign this Lease in counterparts such that this lease document, when all signatures are appended together, will constitute a fully signed original or copy thereof. Facsimile signatures or copies of signatures shall be binding to the same extent as original signatures.
22. Binding Effect. This Lease shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the Parties hereto. * * * * * * * * * * * * * * * * * * * *
Wherefore, the Parties hereto enter into this Lease as of the Effective Date shown above.
City of Chowchilla
________________________________________
By: Rod Pruett By:_____________________________________ Its: City Administrator Its: ______________________________________
[00683427]
5 EXHIBIT A
(DIAGRAM OF THE PROPERTY)
EXHIBIT A - DIAGRAM OF THE PROPERTY
REPORT TO THE CITY COUNCIL
Item 6.1
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TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: New Business
SUBJECT: Consideration of a Resolution Approving a Professional Services Agreement Amendment with Precision Civil Engineering for the Housing Element 2024-2032 Allowing an Extension of Time to Complete the Performance of Services and Authorizing the City Administrator or Designee to Execute Related Documents Thereto
APPROVED BY: Rod Pruett, City Administrator
ATTACHMENTS: Resolution
Services Agreement
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Staff recommends that the City Council Adopt a resolution approving a professional services agreement amendment with Precision Civil Engineer for the Housing Element 2024-2032 allowing for an extension of time to complete the performance of services and authorizing the City Administrator or designee to execute related documents.
BACKGROUND:
On April 28, 2023, the City of Chowchilla published a notice inviting bids for the ‘Preparation of the 2024- 2032 Housing Element.’ The bid proposal was published in the Madera Tribune, OpenGov.com, and City’s social media outlets. The proposal was viewed by 94 vendors, downloaded by 20 vendors, with 2 vendors submitting proposals. The project work includes updating the Housing Element, General Plan updates, implementation, and CEQA Initial Study Review.
On June 13, 2023, City Council approved awarding the contract to Precision Civil Engineering. The Professional services Agreement was signed by both parties on July 17, 2023 and is attached for reference. The term of the agreement was to end on April 30, 2024.
REASON FOR RECOMMENDATION:
Per section 3 of the Professional Services Agreement, there shall be no extension of the Term without an amendment signed by all Parties and approved by the City’s governing board.
The primary reason for the extension request is to carry out implementation of the Housing Element programs through updates to the Zoning Code and Zoning Map. Implementation of the Housing Element programs cannot occur until the Housing Element is adopted by the City and certified by the California Department of Housing and Community Development (HCD). The Housing Element was scheduled to be heard by Planning Commission on 7/17 but there was not a quorum so it has been moved to 8/21 and will go to the City Council on 9/10 (tentative). Upon adoption, the Housing Element will be forwarded to HCD for certification. Once certified, the City can begin implementation.
The extension will run through Aril 2025.
FISCAL IMPACT:
There is no increase in costs, just an extension of time to complete.
ALTERNATIVES:
Do not approve an extension of time and the Housing Element remains as-is.
ACTIONS FOLLOWING APPROVAL:
1. Execution of the Amendment
2. Precision Civil Engineering will complete the update COUNCIL RESOLUTION # -24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA
APPROVING A PROFESSIONAL SERVICES AGREEMENT AMENDMENT WITH PRECISION CIVIL ENGINEERING FOR THE 2024-2032 HOUSING ELEMENT ALLOWING AN EXTENSION OF TIME TO
COMPLETE THE PERFORMANCE OF SERVICES AND AUTHORIZING THE CITY ADMINISTRATOR
OR DESIGNEE TO EXECUTE ALL RELATED DOCUMENTS THERETO
WHEREAS, the Invitation to Bid for the ‘Preparation of the 2024-2032 Housing Element’ (the “Project”) was published in the Madera Tribune on April 29, 2023 and was posted electronically on OpenGov.com on April 28, 2023; and
WHEREAS, the City Council approved awarding the contract to Precision Civil Engineering on June 13 2023; and
WHEREAS, the City and Precision Civil Engineering signed a Professional services Agreement on July 17, 2023; and
WHEREAS, the Professional services Agreement ended on April 30, 2024 and per section 3 of the Professional Services Agreement, there shall be no extension of the Term without an amendment signed by all Parties and approved by the City’s governing board; and WHEREAS, It is necessary to amend the Professional Services Agreement to allow for an extension of time to complete the services until April 30, 2025 in order to carry out implementation of the Housing Element programs through updates to the Zoning Code and Zoning Map. Implementation of the Housing Element programs cannot occur until the Housing Element is adopted by the City and certified by the California Department of Housing and Community Development (HCD).
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct.
2. The City Administrator is authorized to execute the Amendment on behalf of the City of Chowchilla.
3. This resolution is effective immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 27th day of August, 2024 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor Kelly Smith
ATTEST:
Joann McClendon, CMC
City Clerk
REPORT TO THE CITY COUNCIL
Item 6.2
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TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: New Business
SUBJECT: Consideration of a Resolution to Approve a Reimbursement Agreement with the California High-Speed Rail Authority and Authorizing the City Administrator to Execute any Related Documents Thereto
PREPARED BY: Jason Rogers, Director of Public Works
ATTACHMENTS: Resolution, Standard Agreement
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the City Council adopts a resolution to approve a Reimbursement Agreement with the California HighSpeed Rail Authority (CAHSRA).
BACKGROUND:
In December 2020, the City and the CAHSRA entered into a Memorandum of Understanding (MOU) that developed a framework to work collaboratively in relation to the Fairmead Sewer Consolidation Project and to mitigate an anticipated grant funding shortfall of $7,000,000.
Since the MOU was signed, the City and CAHSRA has been working with the CA State Water Resources Control Board (SWRCB), Friends of Fairmead, Self Help Enterprises, and Leadership Counsel for Justice and Accountability regarding a SWRCB grant application for the project. The SWRCB has provided the City with a contingent award notice and anticipates a funding agreement with the City by September 2024.
Additionally, the City and the CAHSRA have been working together to develop a reimbursement agreement that will allow the City to begin engineering/design work for the project and seek reimbursement for those expenses. Once design is completed, the remaining funds will be used for construction in conjunction with a State Water Resources Control Board grant for the project.
REASON FOR RECOMMENDATION:
The reimbursement agreement will reimburse the City for its costs for the engineering, design and construction of the project. It allows the City to move forward with the sewer consolidation project.
Both the CAHSRA and the City’s Attorneys as well as the City Administrator have reviewed the agreement and approve it.
FISCAL IMPACT:
The reimbursement agreement with CAHSRA will provide the City with up to $7,000,000 for project costs associated with design, procurement, construction support, construction and contingency. If escalation costs exceed the approved allocated funds, the City may request additional funding from the SWRCB and CAHSRA will pay 50% of the escalation costs, not to exceed $1,500,000.00.
ALTERNATIVES:
Do not approve entering into the agreement and/or modify the agreement.
ACTIONS FOLLOWING APPROVAL:
City Administrator will sign the related documents.
COUNCIL RESOLUTION # XX-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA
AUTHORIZING THE CITY TO ENTER INTO A REIMBURSEMENT AGREEMENT WITH THE
CALIFORNIA HIGH-SPEED RAIL AUTHORITY AND AUTHORIZING THE CITY ADMINISTRATOR TO
EXECUTE ANY RELATED DOCUMENTS THERETO
WHEREAS, In December 2020, the City and the California High-Speed Rail Authority (CAHSRA) entered into a Memorandum of Understanding to facilitate the construction of the high-speed rail system and allow CAHSRA to comply with a mitigation commitment for payment of the Sewer Funding Assistance; and
WHEREAS, The community of Fairmead currently lacks sewer and wastewater services; and WHEREAS, The City has identified the Fairmead Sewer Consolidation Project as a viable project; and
WHEREAS, The Memorandum of Understanding with CAHSRA identified seven-million dollars ($7,000,000) for project costs associated with design, procurement, construction support, construction and contingency; and
WHEREAS, If escalation costs exceed the approved allocated funds, the City may request additional funding from the SWRCB and CAHSRA will pay 50% of the escalation costs, not to exceed $1,500,000.00.
WHEREAS, The City and the CAHSRA have been working together since the Memorandum of Understanding was signed and this reimbursement agreement allows the City to be reimbursed for costs associated with the Fairmead Sewer Consolidation Project.
WHEREAS, on June 25, 2024, the Chowchilla City Council adopted fiscal year 2024-2025 Operating and Capital Budget with Resolution #33-24; and WHEREAS, per Resolution #50-23, Item #5 and Item #6 states, authority to increase appropriations within a fund by an amount not to exceed $100,000 shall rest with the City Administrator and Authority to transfer appropriations between funds will be represented by resolutions duly approved by the City Council, and
WHEREAS, the budget transfers between funds and the budget amendment exceeds $100,000 and requires City Council approval, and
WHEREAS, Expenditure and revenue accounts will need to be amended within the Project budgets, and Sewer fund budgets in the amount of $7,000,000.00 for the Project; and NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct.
2. The reimbursement agreement will reimburse the City for costs associated with the Fairmead Sewer Consolidation Project.
3. Both the CAHSRA and the City’s Attorneys as well as the City Administrator have reviewed the agreement and are approve it.
4. The Finance Director is authorized to make such other revisions, individual appropriation line-items, changes in summaries, fund totals, grand totals, and other portions of the budget document as necessary to reflect and implement the changes specified in this resolution.
5. This resolution takes effect immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 27th day of August, 2024 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor Kelly Smith
ATTEST:
Joann McClendon, CMC
City Clerk
City of Chowchilla
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EXHIBIT A
SCOPE OF WORK
1. BACKGROUND AND PURPOSE
A. The California High-Speed Rail Authority (“Authority”) is responsible for the planning, design, construction, and operation of the first high-speed rail system in the nation (“Project”). The California high-speed rail system will connect the mega-regions of the state, contribute to economic development and a cleaner environment, create jobs, and preserve agricultural and protected lands.
When it is completed, it will run from San Francisco to the Los Angeles basin in under three hours at speeds of over 200 miles per hour.
B. The Authority may enter into agreements with private and public entities for design, construction, and operation of high-speed rail trains, including all tasks and segments thereof pursuant to California Public Utilities Code section 185036. Additional authority for the Authority to enter into this Agreement (“Agreement”) includes, but is not limited to, California Public Utilities Code sections 185500 et seq.
C. This Agreement is between the Authority, an agency of the State of California, and City of Chowchilla (“Contractor”), a municipal corporation, herein after referred to collectively as the Parties.
D. On December 10, 2020, the Authority and Contractor entered into a certain Memorandum of Understanding (“MOU”), which is incorporated herein by reference. Capitalized terms not defined herein shall, unless otherwise indicated herein, have the meanings assigned to them in the MOU.
E. To facilitate the construction of the high-speed rail system (“System”), comply with a mitigation commitment included in the Final SEIR/EIS (EJ-MM #2), and comply with the Authority’s obligations contained in the MOU for payment of the Sewer Funding Assistance, the Authority requires the Contractor to perform the work as described in Section 2 of this Exhibit A (“Work”) and the Authority will reimburse the Contractor for its actual, reasonable, and necessary expenses in its performance of the Work.
F. All inquiries regarding this Agreement will be directed to the project representatives identified below as “Contract Manager”:
AUTHORITY CONTRACTOR
Contract Manager: Paul Swearingen Contract Manager: Rod C. Pruett Address: 355 South Grand Ave, Suite 2050
Los Angeles, CA 90071
Address: 130 S 2nd Street
Chowchilla, CA 93610
Phone: (916) 908-1284 Phone: (559) 665-8615 ext 100
Fax: Fax:
Email: [email protected] Email: [email protected] City of Chowchilla
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EXHIBIT A
SCOPE OF WORK
The Contractor’s Contract Manager is responsible for the day-to-day project status, decisions, and communications with the Authority’s Contract Manager. The Contractor may change its Contract Manager by giving written notice to the Authority, but the Authority reserves the right to approve any substitution of the Contract Manager. This approval shall not be unreasonably withheld.
The Authority may change its Contract Manager at any time without an amendment, by giving written notice to the Contractor.
2. SCOPE OF WORK, TASKS, DELIVERABLES, AND SCHEDULE
A. The Authority shall provide the Contractor with a Limited Notice to Proceed (“LNTP”) outlining the scope of Work to commence under this Agreement, as well as a proposed alignment, segment number(s), and any other information about the Project segment(s) to assist the Contractor in the investigation of its existing facilities for conflicts with the Project’s proposed alignment. No Work shall be initiated by the Contractor before execution of the Agreement and issuance of a LNTP.
B. The Contractor will be reimbursed for its actual, reasonable, and necessary expenses in its performance of the following activities, as specifically set forth in one or more LNTPs:
Task Description Deliverable Schedule
1. Design Time to prepare
design and
engineering
documents and
environmental
services as
contemplated in Task
4.0 of consultant task
order dated May 16,
2023, for the Sewer
Connection Project.
Plans, specifications
and engineers
estimating
documents ready to
send out for bid.
Specific deliverables
will follow
consultant task
order.
Through expiration or
termination of the
Agreement. All
deliverables to be
provided on date:
xx/xx/xxxx*
2. Procurement Time to procure and
award project to
construction contractor
for the Sewer
Connection Project.
Report construction
contractor award
letter.
Through expiration or
termination of the
Agreement. All reports
and suggestions to be
provided on date:
xx/xx/xxxx*
3. Construction support Time for coordination
of construction
inspection,
management and other
activities during
construction of the
Sewer Connection
Project.
Provide daily
construction activity
reports on a
quarterly basis or
when requested by
the Authority.
Through expiration or
termination of the
Agreement. Daily
construction activity
reports to be provided
quarterly or upon invoice
submittal.*
City of Chowchilla
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EXHIBIT A
SCOPE OF WORK
Task Description Deliverable Schedule
4. Construction
Capital/Contingency
Time for constructing
the Sewer Connection
Project based on the
approved design and
engineering
documents.
Provide invoice for
reimbursement with
daily report activities
to match.
Progress payments will
be made monthly, upon
receipt of invoice.
*Progress payments will be made monthly, upon receipt of invoice.
C. In the event the Budget Act of the current year and/or any subsequent year does not appropriate sufficient funds for the Work, the Authority will reimburse Contractor for Work performed prior to any such date to the extent performed in accordance with the other provisions of this Agreement.
D. Except as specifically set forth above, the Contractor acknowledges the following costs shall not be reimbursed: (i) attending meetings with the Authority, unless requested in writing by the Authority; (ii) acquisition of real property, which shall be handled through the property acquisition process; and (iii) attorney fees; provided, however, reasonable attorney fees will be reimbursed for time spent on acquiring real property rights directly related to the Sewer Connection Project.
The Authority’s obligation to reimburse Contractor for the Sewer Connection Project shall not exceed Seven Million Dollars ($7,000,000.00); provided, however, the Authority may contribute a limited amount of additional funds during the award process due to escalation of construction costs, pursuant to Section 5.1.1 of the MOU. Any additional funds for escalation of construction costs must be approved by the Authority, in writing, the Authority will pay 50% of the escalation costs that shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000.00). The Authority shall have no obligation to reimburse Contractor for any time, costs, or expenses that exceed the approved amounts for reimbursement. If escalation costs exceed the approved allocated funds from the Authority, then the City may request additional funding from the California State Water Board.
E. The Authority’s obligation for Sewer Funding Assistance is limited to covering any shortfall between the Water Board Funding and the Sewer Connection Project; provided, however, the Authority may, in the Authority’s discretion, provide some funding for design, construction support and construction contingency costs before the City receives the Water Board Funding.
Any invoice from the Contractor to Authority shall include supporting documentation that the Water Board Funding was exhausted or a narrative explanation that the Water Board Funding is not available for the invoice.
City of Chowchilla
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EXHIBIT A
SCOPE OF WORK
3. SCHEDULE OF SERVICES
A. Performance of the Work described in Section 2 shall commence upon receipt of an LNTP. Unless terminated as provided herein, the Work shall continue until the earlier of (i) completion of the Work; or (ii) expiration of the term.
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City of Chowchilla
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EXHIBIT B
BUDGET DETAIL AND PAYMENT PROVISIONS
1. BUDGET CONTINGENCY CLAUSE
A. It is mutually agreed that this Agreement shall be of no further force and effect if the Budget Act of the current year and/or any subsequent years, if applicable covered under this Agreement does not appropriate sufficient funds for the Work identified in Exhibit A. In this event, the Authority shall have no liability to pay any funds whatsoever to the Contractor or to furnish any other considerations under this Agreement and the Contractor shall not be obligated to perform any provision of this Agreement.
B. After execution or commencement of this Agreement, if funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this Project, the Authority shall have the option to either:
1) cancel this Agreement with no further liability occurring to the Authority; or 2) offer an amendment to the Agreement to reflect the reduced amount.
C. This Agreement is valid and enforceable only if sufficient funds are made available to the State of California by the United States Government or the California State Legislature for the purpose of this Authority program. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the United States of America or State Legislature during the Agreement term, that affects the provisions, terms, or funding of this Agreement in any manner.
2. COMPENSATION, INVOICING, AND PAYMENT
A. The maximum amount of this Agreement is an estimate, and the actual amount of Work requested by the Authority may be less. No payment shall be made to the Contractor in advance of services rendered.
B. The Contractor shall not be entitled to payment for Work performed prior to receipt of a LNTP from the Authority’s Contract Manager. No Work shall begin before that time.
C. Invoices shall include:
a. The Agreement number;
b. Date prepared;
c. Billing period;
d. Actual hours worked (by individual name and position); e. A narrative of the Work performed, including the associated LNTP number; f. Actual costs for salaries (by position), fringe, and overhead; and g. All allowable subcontractor or vendor direct costs, which shall be supported by receipts.
The Contractor shall only be paid for claimed costs or expenses that are within the scope of work, included in a LNTP, and (1) identified on the Attachment 1 – Rates and Budget Details; or (2) approved in advance by the Authority pursuant to the requirements of Section 2, Subsection I of this Exhibit B.
City of Chowchilla
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EXHIBIT B
BUDGET DETAIL AND PAYMENT PROVISIONS
D. For services satisfactorily rendered in accordance with the terms of this Agreement and approved by the Contract Manager, and upon receipt and approval of the invoices, the Authority shall reimburse the Contractor for actual costs incurred for (i) direct labor, (ii) fringe and overhead rates, and (iii) other direct costs, limited to approved subcontractors and vendors. Any approved subcontractor and vendors shall be subject to the same reimbursement provisions.
E. The Contractor shall provide one (1) electronic original copy of the invoice for payment. Invoices shall be submitted no more than monthly in arrears and no later than thirty (30) calendar days after completion of each billing period or upon completion of a task to:
Financial Office
California High-Speed Rail Authority
770 L Street, Suite 620 MS 3
Sacramento, CA 95814
[email protected]
AND
The Contractor shall also electronically submit one (1) additional courtesy copy of the invoice and supporting documentation to the Authority’s Contract Manager or designee at the email address identified in Exhibit A.
F. The date of invoice delivery shall be the date the Authority receives the electronic original copy to the Financial Office at the email address listed in Section 2, Subsection E of this Exhibit B.
G. Payments shall be made to the Contractor for undisputed invoices. If the Authority’s Financial Office disputes an invoice, it shall notify the Contractor within fifteen (15) working days of receipt of the invoice and pay undisputed portions of the invoice in accordance with the Agreement. The invoice may be disputed if additional evidence is required to determine the invoice’s validity, deliverables for the billing period have not been received and approved, the invoice contains inaccuracies, or the invoice does not otherwise comply with the terms of this Agreement. If a disputed invoice, or any disputed portion thereof, is resolved, the Contractor shall issue a new invoice for the resolved amount and the Authority shall pay the invoice in accordance with the terms of this Agreement.
H. The Contractor’s staff will be reimbursed at actual costs not to exceed the hourly rates set forth in Attachment 1 – Rates and Budget Details or as later augmented pursuant to Exhibit B, Section 2, Subsection I. However, the Contractor acknowledges that “staff time” does not include time for attorneys, subcontractors, and vendors. Subcontractor and vendor costs shall only be reimbursed if necessary to augment Contractor’s staff. Subcontractor and vendor rates must be included in Attachment 1 – Rates and Budget Details or approved by the Authority’s Contract Manager pursuant to Section 2, Subsection I of this Exhibit B.
City of Chowchilla
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EXHIBIT B
BUDGET DETAIL AND PAYMENT PROVISIONS
I. Positions and/or rates listed in Attachment 1 – Rates and Budget Details, may be changed without an amendment to the Agreement. A request for change must be in writing, on the Contractor’s letterhead, and (1) identify the position and rate that is requested to be added, changed, or removed; (2) specify the reason for any position or rate change; and (3) provide documentation supporting any position or rate change, such as a Board of Directors’ Resolution, a new union contract, or equivalent official document. There shall be no change in the positions or rates without written approval by the Authority’s Contract Manager.
J. The Contractor shall retain adequate back-up documentation to verify all Contractor services performed and associated expenses invoiced for payment under this Agreement for audit purposes, which shall be made available to the Authority upon request. The Contractor shall include appropriate provisions in each of its subcontracts to secure adequate backup documentation to verify services performed by all subcontractors and associated expenses invoiced for payment under this Agreement.
3. COST PRINCIPLES
A. The Contractor agrees to comply with the federal cost principles applicable to the FRA Grant Cooperative Agreement No. FR-HSR-0118012, as amended (FY 10 Grant) and/or the amended FRA Grant Cooperative Agreement No. FR-HSR-0009‐10‐01‐06 (America Recovery and Reinvestment Act [ARRA] Grant) and/or any future FRA, United States Department of Transportation (U.S. DOT), or other federal agency Grant/Cooperative Agreement requirements.
These provisions include but are not limited to, the applicable provisions of 2 C.F.R. Part 200 (including § 200.101), the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, and DOT’s implementing regulations at 2 C.F.R Part 1201. If applicable, this compliance also includes the OMB Circular A-87, as amended, Cost Principles for State and Local Governments and 48 C.F.R, Part 31 Contract Cost Principles and Procedures.
B. Any costs for which payment has been made to the Contractor that are determined by subsequent audit to be unallowable are subject to repayment by the Contractor to the Authority.
C. Any subcontract/subagreement equal to or greater than $25,000 entered into as a result of this Agreement, shall contain all the provisions of this clause.
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City of Chowchilla
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EXHIBIT B
BUDGET DETAIL AND PAYMENT PROVISIONS
4. CONTINGENT FEE
A. The Contractor 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, with the exception of bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the Authority has the right to annul this Agreement without liability, to 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.
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City of Chowchilla
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EXHIBIT C
GENERAL TERMS AND CONDITIONS AND CONTRACTOR CERTIFICATIONS
GENERAL TERMS AND CONDITIONS
GTC 04/2017
Under the California High-Speed Rail Authority’s standardized agreement process, a hardcopy of Exhibit C, GTC 04/2017, is not included in the Agreement but is incorporated herein by reference. As indicated on the STD 213, a copy of Exhibit C can be found at the Department of General Services State Contract Language Page.
If you do not have internet access, or otherwise cannot access the GTC 04/2017, please contact the Contracts and Procurement Branch below to receive a copy:
Contracts and Procurement Branch
(916) 324-1541
770 L Street, Suite 620 MS3
Sacramento, California 95814
[email protected]
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City of Chowchilla
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EXHIBIT D
SPECIAL TERMS AND CONDITIONS
1. TERMINATION
A. This Agreement may be terminated at any time by mutual agreement of the Parties in writing.
B. Termination for Convenience. The Authority reserves the right to terminate this Agreement upon thirty (30) calendar days’ written notice to the Contractor, if terminated for the convenience of the Authority. In the event of such termination for convenience, the Authority shall pay the Contractor for all Work performed prior to the effective date of termination pursuant to the payment provisions of this Agreement.
C. Termination for Cause. In accordance with Section 7 of Exhibit C: GTC 04/2017, the Authority reserves the right to terminate this Agreement immediately in the event of breach or failure of performance by the Contractor.
D. Notice of Termination for Subcontractors, Suppliers, and Service Providers. The Contractor shall notify any subcontractor and service or supply vendor providing services under this Agreement of the early termination date of this Agreement. Failure to notify any subcontractor and service or supply vendor shall result in the Contractor being liable for any termination costs incurred by any subcontractor and service or supply vendor for Work performed under this Agreement, except those specifically agreed to by the Authority in writing.
E. Contractor Claims After Early Termination. The Contractor agrees to release the Authority from any and all further claims for services performed arising out of this Agreement or its early termination, upon acceptance by the Contractor of payment for costs actually incurred for Work performed prior to receipt of the notice of termination and actual costs incurred as a result of termination.
2. PURCHASE OF EQUIPMENT
A. No equipment is approved for purchase.
3. SUBCONTRACTING
A. Unless specifically noted otherwise, any subcontract/subagreement entered into as a result of this Agreement that is equal to or greater than $25,000 shall contain all the applicable provisions stipulated in this Agreement.
B. This Agreement does not create a contractual relationship between the Authority and any approved subcontractor. A subcontract shall not relieve the Contractor of performance of its duties hereunder.
The Contractor shall be responsible for any and all acts and omissions of its subcontractors and their employees.
City of Chowchilla
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EXHIBIT D
SPECIAL TERMS AND CONDITIONS
C. The Contractor’s obligation to pay its subcontractors is independent of the Authority’s obligation to pay the Contractor. The Contractor shall pay its subcontractor within seven (7) working days from receipt of each payment made to the Contractor by the Authority.
4. PUBLIC RECORDS; CONFLICTS OF INTEREST
A. This Agreement shall not limit or infringe on either Party’s duty to comply with the California Public Records Act, Government Code section 7920 et seq.
B. The Contractor and its employees, and all its subcontractors and employees, shall comply with the Authority’s Conflict of Interest Code and Organizational Conflict of Interest Policy.
C. Any subcontract equal to or greater than $25,000, entered into as a result of this Agreement, shall contain all of the provisions of this clause.
5. NONDISCRIMINATION COMPLIANCE
A. During the performance of this Agreement, the Contractor and its subcontractors 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 discriminate unlawfully 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. The Contractor shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination.
B. The Contractor shall comply with the provisions of the Fair Employment and Housing Act (Gov.
Code § 12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs., tit. 2, § 11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§ 11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article.
C. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing to the awarding state agency upon reasonable notice at any time during normal business hours, but in no case upon less than twenty-four (24) hours’ notice, to its books, records, accounts, other sources of information, and facilities as said Department or Agency shall require to ascertain compliance with this clause.
D. The Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
City of Chowchilla
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EXHIBIT D
SPECIAL TERMS AND CONDITIONS
E. The Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts entered into as a result of this Agreement.
6. STOP WORK
A. The Authority’s Contract Manager may, at any time, by written notice to the Contractor, require the Contractor to stop all or any part of the Work in this Agreement.
B. Upon receipt of such stop Work order, the Contractor shall immediately take all necessary steps to comply therewith and to minimize the incurrence of costs allocable to Work stopped.
C. The Contractor shall resume the stopped Work only upon receipt of written instruction from the Authority’s Chief Administrative Officer canceling the stop Work order. An equitable adjustment may be made by the Authority based on a written request by the Contractor for such equitable adjustment. Such adjustment request must be made by the Contractor within thirty (30) days from the date of receipt of the stop Work notice.
7. HEADINGS AND RULES OF CONSTRUCTION
A. The headings appearing in this contract have been inserted for the purpose of convenience and ready reference and do not define, limit, or extend the scope or intent of the clauses.
8. NON-WAIVER
A. Either Party’s waiver of any breach or failure to enforce any of the terms, covenants, conditions, or other provisions of the Agreement at any time shall not affect the validity of this Agreement in whole or in part and shall not in any way limit or waive that Party’s right thereafter to enforce or compel strict compliance with every term, covenant, condition or other provision, any course of dealing or custom of the trade notwithstanding. No waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. Furthermore, if the Parties make and implement any interpretation of the Agreement without documenting such interpretation by an instrument in writing signed by both Parties, such interpretation and implementation thereof will not be binding in the event of any future disputes. The consent by one Party to any act by the other Party requiring such consent shall not be deemed to render unnecessary the obtaining of consent to any subsequent act for which consent is required, regardless of whether similar to the act for which consent is given.
B. No act, delay, or omission done, suffered, or permitted by one Party or its agents shall be deemed to waive, exhaust, or impair any right, remedy, or power of such Party under any Agreement, or to relieve the other Party from the full performance of its obligations under the Agreement. No remedy available in this Agreement is intended to be exclusive of any other remedy, and every remedy shall be cumulative and shall be in addition to every other remedy provided therein or available at law or in equity. No custom or practice between the Parties in the administration of the terms of the Agreement shall be construed to waive or lessen the right of a Party to insist upon performance by the other Party in strict compliance with the terms of the Agreement.
City of Chowchilla
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EXHIBIT D
SPECIAL TERMS AND CONDITIONS
C. No waiver of any term, covenant, or condition of the Agreement shall be valid unless in writing and signed by the Party providing the waiver.
9. ENTIRE AGREEMENT
A. This Agreement, with its Exhibits and Attachments stated on the STD 213 represents the entire and integrated agreement between the Authority and the Contractor, and supersedes and replaces all prior and contemporaneous understandings, agreements, arrangements, negotiations, and representations, whether written or oral, with respect to the subject matter hereof.
10. COUNTERPARTS
A. This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed to be an original instrument, all of which together shall constitute one and the same instrument. Counterparts of this Agreement may be exchanged via email or other electronic means, and any email or electronic exchange of a Party’s signature, or any digital signature of a Party, which complies with the Uniform Electronic Transactions Act, shall be deemed to be an original signature for all purposes.
11. EXECUTIVE ORDER N-6-22 – RUSSIA SANCTIONS
A. On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. By submitting a bid or proposal, Contractor represents that it is not a target of Economic Sanctions. Should the State determine Contractor is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for rejection of the Contractor’s bid/proposal any time prior to contract execution, or, if determined after contract execution, shall be grounds for termination by the State.
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City of Chowchilla
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EXHIBIT E
SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS All terms in Exhibit E must be included in all subcontracts and lower-tier subcontracts regardless of amount expended, unless otherwise noted.
1. FEDERAL REQUIREMENTS
A. The Contractor understands that the Authority has received Federal funding from the Federal Rail Administration (FRA) and may receive additional Federal funding from the FRA, U.S. DOT and/or other Federal agencies, and acknowledges that it is required to comply with all applicable federal laws, regulations, policies, and related administrative practices, whether or not they are specifically referenced herein. The Contractor acknowledges that federal laws, regulations, policies, and related administrative practices may change and that such changed requirements will apply. The Contractor shall ensure compliance by its Subcontractors and include appropriate flow down provisions in each of its lower-tier Subcontracts entered into as a result of this Agreement as required by applicable federal laws, regulations, policies, and related administrative practices, whether or not specifically referenced herein.
B. Notwithstanding anything to the contrary contained in this Agreement, all FRA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Authority requests, which would cause the Authority to be in violation of FRA requirements.
C. References to the amended Federal Railroad Administration Grant Cooperative Agreement No.
FR-HSR-0009‐10‐01‐06 (ARRA Grant) provisions herein are also deemed to apply in principle to the FRA Grant Cooperative Agreement No. FR-HSR-0118012, as amended (FY 10 Grant) and/or any future FRA, U.S. DOT, or other Federal agency Grant/Cooperative Agreement requirements, including but not limited to reporting requirements and related obligations. The Contractor acknowledges that it is required to comply with, and adhere to, all requisite Federal requirements from the FRA, UD DOT and/or other Federal agencies that apply, or will apply.
2. COMPLIANCE WITH FEDERAL REQUIREMENTS
The Contractor’s failure to comply with federal requirements shall constitute a breach of this Agreement.
3. FEDERAL LOBBYING ACTIVITIES CERTIFICATION
The Contractor certifies, to the best of its knowledge and belief, that:
A. No state or federal appropriated funds have been paid or will be paid, by or on behalf of the Contractor, to any person for influencing or attempting to influence an officer or employee of any 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 of any State or Federal agreement, the making of any State or Federal grant, the making of any State or Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any State or Federal agreement, grant, loan, or cooperative agreement.
City of Chowchilla
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EXHIBIT E
SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS B. 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 federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this agreement, grant, loan, or cooperative agreement, the Contractor shall complete and submit Standard Form LLL, "Disclosure Form to Report Lobbying,” in accordance with its instructions.
C. 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. section 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each failure.
D. The Contractor also agrees that by signing this document, it shall require that the language of this certification be included in all lower-tier Subcontracts, which exceed $100,000, and that all such Subcontractors shall certify and disclose accordingly.
4. DEBARMENT AND SUSPENSION
A. This Agreement is a covered transaction for purposes of 2 C.F.R. 1200. As such, the Contractor is required to comply with applicable provisions of Executive Orders Nos. 12549 and 12689, “Debarment and Suspension,” 31 U.S.C. section 6101 note, and U.S. Department of Transportation (DOT) regulations, “Non-procurement Suspension and Debarment,” 2 C.F.R. Part 1200, which adopt and supplement the provisions of U.S. OMB “Guidelines to Agencies on Government-wide Debarment and Suspension (Non-procurement),” 2 C.F.R. Part 180.
B. To the extent required by the aforementioned U.S. DOT regulations and U.S. OMB guidance, the Contractor must verify that each subcontractor is not excluded or disqualified in accordance with said regulations by reviewing the “Excluded Parties Listing System” at http://www.sam.gov/portal/public/SAM/. The Contractor shall obtain appropriate certifications from each such subcontractor and provide such certifications to the Authority. The Contractor’s signature affixed herein shall also constitute a certification under penalty of perjury under the laws of the State of California that the Contractor or any person associated therewith in the capacity of owner, partner, director, officer, or manager:
a. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
b. Has not had one or more public transactions (federal, state, and/or local) terminated within the preceding three (3) years for cause or default;
City of Chowchilla
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EXHIBIT E
SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS c. Has not been convicted within the preceding three (3) years of any of the offenses listed in Title 2 C.F.R. section 180.800, subdivision (a), or had a civil judgment rendered against it for one of those offenses within that time period; and
d. Is not presently indicted for or otherwise criminally or civilly charged by a government entity (federal, state, and/or local) with commission of any of the offenses listed in Title 2 C.F.R. section 180.800.
C. Should the Contractor or any subcontractor become excluded or disqualified as defined in this Section during the life of the Agreement, the Contractor shall immediately inform the Authority of this exclusion or disqualification. The Contractor shall include a term or condition in the contract documents for each lower-tier covered transaction, assuring that, to the extent required by the U.S.
DOT regulations and U.S. OMB guidance, each subcontractor will review the “Excluded Parties Listing System,” will obtain certifications from lower-tier subcontractors, and will include a similar term or condition in each of its lower-tier covered transactions.
5. SITE VISITS
The Contractor acknowledges that the FRA, through its authorized representatives, has the right, at all reasonable times, to make site visits to review Project accomplishments and for other reasons. If any site visit is made by the FRA on the premises of the Contractor or any of its subcontractors under this Agreement, the Contractor shall provide, and shall require its subcontractors to provide, all reasonable facilities and assistance for the safety and convenience of the FRA representatives in the performance of their duties. All site visits and evaluations shall be performed in such a manner as will not unduly delay Work being conducted by the Contractor or subcontractor.
6. SAFETY OVERSIGHT
A. To the extent applicable, the Contractor shall comply with any federal regulations, laws, or policies and other guidance that the FRA or U.S. DOT may issue pertaining to safety oversight in general, and in the performance of this Agreement, in particular.
7. ENVIRONMENTAL PROTECTION
The Contractor and any subcontractor under this Agreement shall comply with all applicable environmental requirements and regulations, including any amendments, as follows:
A. Clean Air. The Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. sections 7401 et seq. The Contractor shall report each violation to the Authority, and acknowledges that the Authority shall, in turn, report each violation as required to assure notification to the FRA and the appropriate Environmental Protection Agency (EPA) Regional Office.
City of Chowchilla
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EXHIBIT E
SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS B. Clean Water. The Contractor shall comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. sections 1251 et seq. The Contractor shall report each violation to the Authority, and acknowledges that the Authority shall, in turn, report each violation as required to assure notification to the FRA and the appropriate EPA Regional Office.
C. Energy Conservation. The Contractor will comply with the mandatory standards and policies relating to energy efficiency contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. section 6421 et seq.
D. Agreement Not to Use Violating Facilities. The Contractor agrees not to use any facility that is listed on the List of Violating Facilities maintained by the EPA to perform Work hereunder. The Contractor shall promptly notify the Authority if the Contractor or any subcontractor receives any communication from the EPA indicating that any facility that will be used to perform Work pursuant to this Agreement is under consideration to be listed on the EPA’s List of Violating Facilities; provided, however, that the Contractor’s duty of notification hereunder shall extend only to those communications of which it is aware or should reasonably have been aware.
E. Environmental Protection. The Contractor shall comply with all applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. section 4321 et seq.
F. Incorporation of Provisions. The Contractor shall include the above provisions 7.A through 7.F in every subcontract hereunder exceeding $50,000, financed in whole or in part with federal assistance provided by the FRA.
8. CIVIL RIGHTS
A. The following requirements apply to this Agreement:
B. Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. section 2000d; section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. section 6102; section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. section 12132; and 49 U.S.C. section 306, the Contractor will not discriminate against any individual because of race, color, religion, national origin, sex, age or disability in any activities leading up to or in performance of this Agreement. In addition, the Contractor will comply with applicable federal implementing regulations and other implementing requirements that the FRA may issue.
C. Equal Employment Opportunity. The following equal employment opportunity requirements apply to this Agreement:
a. Race, Color, Religion, National Origin, or Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. section 2000e, the Contractor will comply with all applicable equal opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, “Office of Federal Contract Compliance Programs, Equal Employment City of Chowchilla
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SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS Opportunity, Department of Labor,” including 41 C.F.R 60 et seq. (which implements Executive Order No. 11246, “Equal Employment Opportunity,” as amended by Executive Order No. 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” 42 U.S.C. § 2000e note), and with any applicable federal statutes, executive orders, regulations, and federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, sex, or age. Such action shall include the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor will comply with any implementing requirements the FRA may issue.
b. Age. In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. section 623, the Contractor will refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor will comply with any implementing requirements the FRA may issue. c. Disabilities. In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. section 12112, the Contractor will comply with the requirements of U.S. Equal Employment Opportunity Commission, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R Part 1630, pertaining to employment of persons with disabilities. Further, in accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. section 794, the Contractor will comply with the requirements of U.S. DOT, “Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance,” 49 C.F.R.
Part 27, pertaining to persons with disabilities. In addition, the Contractor will comply with any implementing requirements the FRA may issue.
C. The Contractor also agrees not to discriminate on the basis of drug abuse, in accordance with the Drug Abuse Office and Treatment Act of 1972 (Pub.L. No. 92-255), as amended, or alcohol abuse, in accordance with the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (Pub.L. No. 91-616), as amended, and to comply with sections 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. § 290 dd), as amended, relating to confidentiality of alcohol and drug abuse patient records. In addition, the Contractor will comply with applicable federal implementing regulations and other implementing requirements that the FRA may issue.
D. The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with federal assistance provided by the FRA, modified only if necessary to identify the affected parties.
City of Chowchilla
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EXHIBIT E
SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS
9. ARRA FUNDED PROJECT
A. Funding for this Agreement has been provided through the American Recovery and Reinvestment Act of 2009 (ARRA) (Pub. L. No. 111-5). All contractors, including both prime and subcontractors, are subject to audit by appropriate federal or state entities. The state has the right to cancel, terminate, or suspend the Agreement if any contractor or subcontractor fails to comply with the reporting and operational requirements contained herein.
10. ENFORCEABILITY
A. The Contractor agrees that if the Contractor or one of its subcontractors fails to comply with all applicable federal and State of California requirements governing the use of ARRA funds, the state may withhold or suspend, in whole or in part, funds awarded under the program, or recover misspent funds allowing an audit. This provision is in addition to all other remedies available to the state under all applicable state and federal laws.
11. PROHIBITION ON USE OF ARRA FUNDS
A. The Contractor agrees in accordance with ARRA section 1604 that none of the funds made available under this Agreement may be used for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool.
12. ACCESS AND INSPECTION OF RECORDS
A. In accordance with ARRA sections 902, 1514, and 1515, the Contractor agrees that it shall permit the State of California, the United States Comptroller General, the United States Department of Transportation Secretary, or their representatives or the appropriate Inspector General appointed under sections 3 or 8G of the United States Inspector General Act of 1978, or his representative, to:
a. Access and reproduce any books, documents, papers and records of the Contractor that directly pertain to, and involve transactions relating to, this Agreement for the purposes of making audits, examinations, excerpts and transcriptions; and b. Interview any officer or employee of the Contractor or any of its subcontractors regarding the activities funded with funds appropriated or otherwise made available by ARRA.
B. Pursuant to 49 C.F.R. section 18.26, subdivision (i)(11), 49 C.F.R. section 19.26 or U.S. OMB Circular A-133 (whichever applicable), the Contractor will maintain all books, records, accounts, and reports required under this Agreement for a period of not less than three (3) years after the date of termination or expiration of this Agreement, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case the Contractor will maintain same until the Authority, the FRA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims, or exceptions City of Chowchilla
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SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS related thereto. The Contractor shall notify the Authority not less than six (6) months prior to disposal of any books, records, accounts and reports required under this Agreement.
C. The Contractor will comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, Title 5 U.S.C. section 552, subdivision (a).
The Contractor shall include this provision in all lower-tier subcontracts.
13. WHISTLEBLOWER PROTECTION
The Contractor agrees that both it and its subcontractors shall comply with section 1553 of the ARRA, which prohibits all non-federal contractors, including the state, and all contractors of the state, from discharging, demoting, or otherwise discriminating against an employee for disclosures by the employee that the employee reasonably believes are evidence of:
A. Gross mismanagement of a contract relating to ARRA funds; B. Gross waste of ARRA funds;
C. A substantial and specific danger to the public health or safety related to the implementation or use of ARRA funds;
D. An abuse of authority related to implementation or use of ARRA funds; or E. A violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contractor) awarded or issued relating to ARRA funds.
The Contractor agrees that it and its subcontractors shall post notice of the rights and remedies available to employees under section 1553 of Title XV of Division A of the ARRA.
14. FRAUD AND FALSE CLAIMS ACT
A. The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986 (6 C.F.R. Part 13), as amended, 31 U.S.C. section 3801 et seq., and the U.S. DOT regulations Program Fraud Civil Remedies (49 C.F.R. Part 31), apply to its actions pertaining to this Project.
Upon execution of this Agreement, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or it causes to be made, pertaining to this Agreement or the FRA-assisted project for which Work is being performed under this Agreement.
In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the federal government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 as cited above on the Contractor to the extent the federal government deems appropriate.
City of Chowchilla
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EXHIBIT E
SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS B. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the federal government under a contract connected with a project that is financed in whole or in part with federal assistance originally awarded by the FRA, the federal government reserves the right to impose the penalties of 18 U.S.C. section 1001 or any other applicable law on the Contractor, to the extent the federal government deems appropriate.
C. The Contractor agrees that it shall promptly notify the Authority and shall refer to an appropriate federal inspector general any credible evidence that a principal, employee, agent, subcontractor, or other person has committed a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving ARRA funds.
D. The Contractor will include the above paragraphs in each subcontract financed in whole or in part with federal assistance provided by the FRA. It is further agreed that the paragraphs shall not be modified, except to identify the subcontractor who will be subject to the provisions.
15. REPORTING REQUIREMENTS
A. The Contractor agrees, upon request by the Authority in writing, to provide the Authority with the following information:
B. The total amount of funds received by the Contractor during the time period defined in the Authority’s request;
C. The amount of funds actually expended or obligated during the time period requested; D. A detailed list of all projects or activities for which funds were expended or obligated, including:
a. The name of the project or activity;
b. A description of the project activity;
c. An evaluation of the completion status of the project or activity; and d. An estimate of the number of jobs created and/or retained by the project or activity.
E. For any contracts or subcontracts equal to or greater than $25,000:
a. The name of the entity receiving the contract;
b. The amount of the contract;
c. The transaction type;
d. The North American Industry Classification System (NAICS) code or Catalog of Federal Domestic Assistance (CFDA) number, if known;
City of Chowchilla
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SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS e. The location of the entity receiving the contract;
f. The primary location of the contract, including city, state, congressional district, and county;
g. The Data Universal Numbering System (DUNS) number, or name and zip code for the entity headquarters, if known;
h. A unique identifier of the entity receiving the contract and the parent entity of the Contractor, should the entity be owned by another; and
i. The names and total compensation of the five most highly compensated officers of the company if received:
1. 80% or more of its annual gross revenues in federal awards;
2. $25,000,000 or more in annual gross revenue from federal awards; and
3. If the public does not have access to information about the compensation of senior executives through periodic reports filed under section 13, subdivision (a) or section 15, subdivision (d) of the Securities Exchange Act of 1934, or section 6104 of Internal Revenue Code of 1986.
j. Any other information reasonably requested by the State of California or required by state or federal law or regulation.
F. Standard data elements and federal instruction for use in complying with reporting requirements under section 1512 of the ARRA are pending review by the federal government and were published in the Federal Register on April 1, 2009 (74 Fed. Reg. 14824), and are to be provided online at www.FederalRegister.gov. The additional requirements will be added to this Agreement by amendment.
16. REPRINTS OF PUBLICATIONS
A. Whenever an employee of a Contractor-related entity writes an article regarding the Project, or otherwise resulting from Work under this Agreement, that is published in a scientific, technical, or professional journal or publication, the Contractor shall ensure that the Authority is sent two reprints of the publication, clearly referenced with the appropriate identifying information.
B. An acknowledgment of FRA support and a disclaimer must appear in any publication, whether copyrighted or not, based on or developed under the Agreement, in the following terms:
a. “This material is based upon work supported by the Federal Railroad Administration under a grant/cooperative agreement FR-HSR-0009-10-01-05, dated December 5, 2012. Any opinions, findings, and conclusions or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the Federal Railroad City of Chowchilla
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SUPPLEMENTAL TERMS AND CONDITIONS FOR CONTRACTS USING FEDERAL FUNDS Administration and/or U.S. DOT.”
17. LABOR PROVISIONS
A. 49 U.S.C. 24405, subdivision (b) provides that any person conducting rail operations over rail infrastructure constructed or improved in whole or in part with funds provided through this Agreement shall be considered a “rail carrier,” as defined by 49 U.S.C. 10102, subdivision (5), for the purposes of Title 49, U.S.C., and any other statue that adopts that definition or in which that definition applies, including the Railroad Retirement Act of 1974 (45 U.S.C. § 231 et seq.), the Railway Labor Act (43 U.S.C. § 151 et seq.), and the Railroad Unemployment Insurance Act (45 U.S.C. 351 et seq.). To the extent required by 49 U.S.C. 24405, subdivision (b) and other laws referenced above, the Contractor shall reflect these provisions in its agreements funded in whole or in part by this Agreement with entities operating rail services over such rail infrastructure.
18. LABOR PROTECTIVE ARRANGEMENTS
A. The Contractor will comply with the applicable protective arrangements established under section 504 of the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act), 45 U.S.C. 836. with respect to employees affected by actions taken in connection with the Project. The Contractor will also include the applicable protective arrangements established by the U.S. DOL under 45 U.S.C. 836 in its arrangements with entities operating rail services over rail infrastructure constructed as part of this Agreement.
19. PROHIBITION OF TRAFFICKING IN PERSONS
A. The Contractor agrees that during the term of this Agreement, in accordance with section 106(g) of the Trafficking Victims Protection Act of 2000, as amended (22 U.S.C. section 7104(g)), the Contractor and its employees, and its Subcontractors (of any tier), and all of their employees, shall not engage in severe forms of trafficking in persons, procure a commercial sex act, or use forced labor in the performance of this Agreement.
This provision must be included in all Subcontract agreements.
20. PROHIBITION OF TEXT MESSAGING WHILE DRIVING
A. The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies that bar text messaging while driving company-owned, leased, or rented vehicles or privately-owned vehicles when performing work under this Agreement. See Executive Order 13513 “Federal Leadership on Reducing Text Messaging While Driving,” Oct. 1, 2009 (available at http://www.gpo.gov/fdsys/pkg/FR-2009-10-06/pdf/E9- 24203.pdf) and DOT 3902.10 “Text Messaging While Driving,” Dec. 30, 2009, as implemented by Financial Assistance Policy Letter (No. FAP-2019-01, Feb. 2, 2010, available at http://www.dot.gov/sites/dot.dev/files/docs/FAPL_2010-01.pdf.
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City of Chowchilla
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ATTACHMENT 1 - RATES AND BUDGET DETAILS
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Position and Title Labor Rate per
Hour
Overhead
Percentage
Fringe
Percentage
Fully Loaded
Rate per Hour
Consultants Labor Rate per
Hour
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Rate per Hour
REPORT TO THE CITY COUNCIL
Item 6.3
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: New Business
SUBJECT: Consideration and Adoption of a Resolution Amending the 2024/2025 Salary Scale to Include the Clerical/Recreation Aid Classification PREPARED BY: Stacy Wisener, Deputy Director of Recreation and Community Engagement ATTACHMENTS: Resolution
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the City Council adopts a resolution amending the 2024/2025 salary scale to include the Clerical/Recreation Aid classifications.
BACKGROUND:
Currently, the Recreation Department is staffed with only a Deputy Director and needs assistance.
Additionally, the Front Desk position needs to be filled that was previously budgeted for under the Finance Department. The City Office Employee Association bargaining unit has reviewed and approved adding the position at the proposed Range 25 for the Clerical/Recreation Aid and is typical with similar-sized agencies.
REASON FOR RECOMMENDATION:
We have a vacancy at the front desk that needs to be filled, to assist customers with various clerical tasks, including basic cashier, customer service, program registration, record keeping, data entry, and support of events. Additionally, this position will also be utilized for a variety of functions to support the Recreation Department's programs and events, including working directly with youth participants, assisting with planning activities, and providing customer service.
FISCAL IMPACT:
The salary for a Range 25 position start at $41,641.60 per year and top out at $53,331.20. This includes the 3% COLA effective July 1, 2024 as negotiated per the CCOEA MOU. The Finance department had this position budgeted as Grade 22 and will adjust the budget to accrue for grade 25 as negotiated and transfer it to the Recreation Department.
ALTERNATIVES:
Do not approve the additional classification.
ACTIONS FOLLOWING APPROVAL:
Update the salary scale.
COUNCIL RESOLUTION # XX-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA AMENDING THE 2024/25 SALARY SCALE TO INCLUDE CLERICAL/RECREATION AID
CLASSIFICATION
WHEREAS, Section 37206 of the Government Code requires City Council to prescribe the time and method of paying salaries and wages of employees of the City; and, WHEREAS, from time to time, staff may review the functionality of their department and suggest changes to certain roles and classifications; and,
WHEREAS, these changes may affect the City’s salary scale; and, WHEREAS, the Administrative Services and Finance Departments have analyzed the needs and requirements needed in order to plan for future growth and its needs; and, WHEREAS, the recommended Clerical/Recreation Aid Classification and pay ranges best fits the immediate and long-term needs to operate the department.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The salary scale for the Clerical/Recreation Aid Classification are attached and marked as Exhibit A are hereby added to the City’s current Salary Scale.
2. This resolution is effective immediately upon adoption. * * * * *
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 27th day of August, 2024 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor Kelly Smith
ATTEST:
Joann McClendon, CMC
City Clerk
EXHIBIT A
Clerical/Recreation Aid:
Grade A A ½ B B ½ C C ½ D D ½ E E ½ F
25 22.02 22.52 21.03 21.56 22.10 22.65 23.22 23.80 24.40 25.01 25.64
REPORT TO THE CITY COUNCIL
Item 6.4
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: New Business
SUBJECT: Consideration of a Resolution Awarding Consultant Services for Airport Engineering Services, and Planning and Environmental Consultant Services to Brandley Engineering, Inc. and Authorizing the City Administrator to Execute the Agreements on Behalf of the City.
APPROVED BY: Jason Rogers, Director of Public Works
ATTACHMENTS: Resolution, Agreements
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
Staff recommends that the City Council award consulting services for Airport Engineering and Planning Environmental Consulting Services with Brandley Engineering, Inc. and authorize the City Administrator, or designee, to execute all documents on behalf of City Council.
BACKGROUND:
Historically, the City of Chowchilla has contracted with an outside consultant for all of its Airport Engineering services. These services included delivery of capital projects, development of design plans and specifications; project and construction management; construction inspection; and consultation and planning with the Federal Aviation Administration for the Airport. The current consultant contract with Brandley Engineering, Inc. has expired.
REASON FOR RECOMMENDATION:
Two Request for Qualifications (RFQ) for “On-Call Airport Engineering Services” and “Planning and Environmental Consultant Services” were released on June 4, 2024 in accordance with Federal Aviation Administration (FAA) regulations regarding Consultant Services. These regulations require that proposers must be ranked based on qualifications only. While one consultant can be selected for both Engineering, and Planning and Environmental services, the RFQs must be advertised separately. Once the most qualified firm is identified, then negotiations on costs commence. If an agreement cannot be reached with the highest ranked firm, then negotiations commence with the second ranked firm. This process continues until an agreement can be reached with a proposer.
On July 11, 2024, the City received proposals from two firms: Brandley Engineering, Inc. and Sietricon.
The proposals were reviewed by City staff. All reviewers ranked Brandley Engineering, Inc. as the most qualified proposer. Accordingly, negotiations with Brandley Engineering, Inc. were initiated, and staff believes that acceptable terms have been negotiated and recommends that the City Council approve the award of the contract to Brandley Engineering, Inc.
The scope of work identified in the RFQ includes, but is not limited to, the following:
• Assistance with preparation of applications for Federal Aviation Administration (FAA) • Airport Improvement Project (AIP) grant funding and representing the City in discussions with the FAA regarding projects and grants
• Airport engineering, planning, architecture, and/or environmental consulting services as may be required
• Terminal development
• Runway, taxi lane, taxiway and apron development, reconstruction, and resurfacing • Airfield electrical systems upgrade
• Security fencing
• Infrastructure improvements including access roads, vehicle parking lots, landscaping and irrigation • Aircraft hangar development
• Drainage improvements
• Access control systems
• Airport Geographic Information Systems (AGIS) Surveys • Aerial Photography
• Navigational Aids
• Environmental Work
• Wildlife Assessment and Mitigation
• Safety Management System program implementation
• Pavement Maintenance Management Plans
• Construction Phase Services/Construction Management and Inspections • Airport Layout Plan
• DBE Program Development
The following provisions are included in the contract:
• The base term for the contract is for a three-year period with the ability to extend an additional two years. Federally funded on-call contracts are not permitted to go beyond a five-year period, so the term of both contracts has been made the same.
• Brandley Engineering, Inc. will be the City’s single prime contractor responsible for all engineering and planning services related to the Airport.
• All work will be executed through the task order process. • The Public Works Director will have approval authority over hourly rate adjustments over the life of the contract.
• The contract will have provisions to allow other consultants to perform work under separate contracts for the City without penalty (Brandley Engineering, Inc. will not have exclusive rights to the work).
On-call consultants enable the City to increase project delivery capacity and execute projects in a timely and cost-effective manner. Brandley Engineering, Inc., was deemed the most qualified applicant. Staff recommends that Council adopt the resolution authorizing the City Administrator to execute professional service contracts with the firm.
FISCAL IMPACT:
All work to be performed under the proposed contract is programmed and appropriated in the current fiscal year budget. Since this will be a multiyear contract, future work will be included in future budgets. No work will be performed in excess of budgeted authority. Staff anticipates funding will be provided through FAA ACIP grants, airport capital improvement funds and possibly the General Fund for matching funds on grants received.
ALTERNATIVES:
Not to approve the contract with Brandley Engineering, Inc., Consulting Airport Engineer, thereby leaving the City without engineering/consulting services for the airport.
ACTIONS FOLLOWING APPROVAL:
1. The City Administrator or designee will execute the Agreements with Brandley Engineering, Inc.
COUNCIL RESOLUTION # XX-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA
AWARDING CONSULTANT SERVICES FOR AIRPORT ENGINEERING SERVICES, AND PLANNING AND ENVIRONMENTAL CONSULTANT SERVICES TO BRANDLEY ENGINEERING, INC. AND
AUTHORIZING THE CITY ADMINISTRATOR TO EXECUTE THE AGREEMENTS ON BEHALF OF
THE CITY
WHEREAS, on June 4, 2024, the City released a Request for Qualifications (RFQ) seeking firms or individuals to provide airport engineering services; and WHEREAS, on June 4, 2024, the City released a Request for Qualifications (RFQ) seeking firms or individuals to provide airport planning and environmental consultant services; and WHEREAS, on July 11, 2024, the City received two Statements of Qualification in response to the RFQs, which submissions were then reviewed and rated according to their project understanding and approach and qualifications; and
WHEREAS, the submission from Brandley Engineering, Inc. was found to be fully qualified and responsive to the City’s request; and
WHEREAS, funding is currently available in the FY 2024-2025 budget.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct.
2. The City Administrator is authorized to execute the agreements on behalf of the City.
3. This resolution is effective immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 27th day of August, 2024 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor Kelly Smith
ATTEST:
Joann McClendon, CMC
City Clerk
CITY OF CHOWCHILLA
CONSULTANT SERVICE AGREEMENT
This Consultant Services Agreement ("Agreement") is entered into between the City of Chowchilla, a California general law city ("City") and Brandley Engineering ("Consultant") with respect to the following recitals, which are a substantive part of this Agreement. This Agreement shall be effective on August 27, 2023 ("Effective Date").
RECITALS
A. City desires to obtain Airport Architectural & Engineering Consultant ("Services") more fully described in Exhibit A, and, if applicable, as further set forth in the proposal from Consultant attached as Exhibit B (“Consultant’s Proposal”), which are incorporated herein by reference.
B. Consultant is engaged in the business of furnishing the Services and hereby warrants and represents that Consultant is qualified, experienced, and capable of performing the Services, and possesses any required licenses, certifications, security/bonding, and/or training necessary to perform the Services.
C. City desires to retain Consultant, and Consultant desires to provide the City with the Services, on the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual agreements herein, City and Consultant agree as follows:
AGREEMENT
1. Scope of Services. Consultant shall perform the Services described in the Recitals and detailed in Exhibits A & B. Changes in the scope of Services, including the work performed and/or deliverables produced, shall be made in writing and particularly describe the changes in Services, including payment/costs and schedule/term, as applicable.
2. Priority and Conflicts; Exclusions. If the terms and requirements of this Agreement and/or Exhibit A conflict with Exhibit B, this Agreement and Exhibit A shall control. No contractual terms and/or conditions found in Exhibit B shall purport to waive, disclaim, or limit Consultant’s liability, indemnification obligations, warranties, damages for breach or delay, or any security, bonding, or insurance requirements, and any such provisions shall have no force or effect with respect to this Agreement and the Services performed by Consultant.
3. Term of Agreement; Commencement of Services; Schedule. The term of this Agreement shall commence on August 27, 2024, and Consultant shall begin performing the Services on that date, unless otherwise instructed by City. This Agreement shall terminate on August 27, 2029, unless extended beyond that date by mutual consent of the Parties, for a period not exceeding 5 years. This Agreement may be terminated prior to the end of the term pursuant to Section 17 herein.
4. Payment for Services. City shall pay Consultant for the Services performed pursuant to this Agreement according to the rate(s) stated in Exhibit A or in Consultant’s Proposal, which is set forth in Exhibit B, as applicable.
The foregoing is inclusive of all labor, equipment, materials, costs and expenses, taxes, and overhead. City shall pay Consultant for Services satisfactorily performed pursuant to this Agreement. Consultant shall Prepared Feb. 2022 2
submit monthly invoices to City containing detailed billing information regarding the Services provided and unless otherwise specified in Exhibit A, City shall tender payment to Consultant within thirty (30) days after receipt of invoice.
5. Independent Contractor Status. Consultant and its subcontractors shall perform the Services as independent contractors and not as officers, employees, agents or volunteers of City. Consultant is engaged in an independently established trade, occupation, or business to perform the Services required by this Agreement and is hereby retained to perform work that is outside the usual course of City’s business.
Consultant is free from the control and direction of City in connection with the manner of performance of the work. Nothing contained in this Agreement shall be deemed to create any contractual relationship between City and Consultant's employees or subcontractors, nor shall anything contained in this Agreement be deemed to give any third party, including but not limited to Consultant's employees or subcontractors, any claim or right of action against City.
6. Consultant Representations; Standard of Care; Compliance with Law. Consultant represents that Consultant and any subcontractors utilized by Consultant are and will be qualified in the field for which Services are being provided under this Agreement and Consultant and any subcontractors are now, and will be throughout their performance of the Services under this Agreement, properly licensed, certified, secured/bonded, trained, and/or otherwise qualified and authorized to perform the Services required and contemplated by this Agreement, as may be required by law. Consultant and its subcontractors shall utilize the standard of care and skill customarily exercised by members of their profession, shall use reasonable diligence and best judgment while performing the Services, and shall comply with all applicable laws, regulations, and industry standards. Consultant shall comply with all Labor Code requirements for public works projects if applicable to Consultant’s work under this Agreement.
7. [Reserved]
8. Subcontractor Provisions. Consultant shall include in its written agreements with its subcontractors, if any, provisions which: (a) impose upon the subcontractors the obligation to provide to City the same insurance and indemnity obligations that Consultant owes to City; (b) make clear that City intends to rely upon the reports, opinions, conclusions and other work product prepared and performed by subcontractors for Consultant; and (c) entitle City to impose upon subcontractors the assignment rights found elsewhere in this Agreement.
9. Power to Act on Behalf of City. Consultant is not acting as an agent of City and shall not have any right, power, or authority to create any obligation, express or implied, or make representations on behalf of City except as may be expressly authorized in advance in writing from time to time by City and then only to the extent of such authorization.
10. Record Keeping; Reports. Consultant shall keep complete records showing the type of Services performed. Consultant shall be responsible and shall require its subcontractors to keep similar records. City shall be given reasonable access to the records of Consultant and its subcontractors for inspection and audit purposes. Consultant shall provide City with a working draft of all reports upon reasonable request by City and of all final reports prepared by Consultant under this Agreement.
11. Ownership and Inspection of Documents. All data, tests, reports, analyses, documents, records, conclusions, opinions, recommendations and other work product generated by or produced for Consultant or its subcontractors in connection with the Services, regardless of the medium, including physical drawings and materials recorded on computer discs or other electronic devices ("Work Product"), shall be and remain the property of City. City shall have the right to use, copy, modify, and reuse the Work Product as it sees fit.
Upon City's request, Consultant shall make available for inspection and copying all such Work Product and Prepared Feb. 2022 3
all Work product shall be turned over to City promptly at City's request or upon termination of this Agreement, whichever occurs first. Consultant shall not release any Work Product to third parties without prior written approval of City. This obligation shall survive termination of this Agreement and shall survive for four (4) years from the date of expiration or termination of this Agreement.
12. Confidentiality. All Work Product prepared and performed by and on behalf of Consultant in connection with the Services performed pursuant to this Agreement shall be kept confidential and shall be disclosed only to City, unless otherwise provided by law or expressly authorized by City. Consultant shall not disclose or permit the disclosure of any confidential information acquired during performance of the Services, except to its agents, employees and subcontractors who need such confidential information in order to properly perform their duties relative to this Agreement. Consultant shall also require its subcontractors to be bound to these confidentiality provisions.
13. City Name and Logo. Consultant shall not use City's name or insignia, photographs relating to the City projects or work for which Consultant's services are rendered, or any publicity pertaining to the Consultant's Services under this Agreement in any magazine, trade paper, newspaper, television or radio production, internet website, social media, or other similar medium without the prior written consent of City.
14. Conflicts of Interest. Consultant warrants that neither Consultant nor any of its employees have an improper interest, present or contemplated, in the Services which would affect Consultant’s or its employees’ performance of the Services and the Work Product produced. Consultant further warrants that neither Consultant nor any of its employees have real property, business interests or income that will be affected by the Services. Consultant covenants that no person having any such interest, whether an employee or subcontractor shall perform the Services under this Agreement. During the performance of the Services, Consultant shall not employ or retain the services of any person who is employed by the City or a member of any City Board or Commission.
15. Non-liability of Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successors in interest, in the event of a default or breach by City for any amount which may become due Consultant or its successor, or for any breach of any obligation under the terms of this Agreement.
16. City Right to Employ Other Consultants. Unless Exhibit A specifically provides that the Services City seeks pursuant to this Agreement are exclusive to Consultant, this Agreement and performance of the Services are non-exclusive and City reserves the right to employ other consultants in connection with the Services while this Agreement is in effect.
17. Termination of Agreement. This Agreement shall terminate as provided in Section 3, unless terminated earlier pursuant to the following:
a. Termination by City: For Convenience. City may at its discretion terminate this Agreement for convenience and without cause upon fourteen (14) days prior written notice to Consultant. Upon receipt of a termination notice pursuant to this subsection, Consultant shall promptly discontinue all Services affected, unless the notice directs otherwise.
b. Termination by City or Consultant: For Cause. Either party may terminate this Agreement upon ten (10) days prior written notice to the other party of a material breach, and a failure within that time period to cure or commence reasonable steps to cure the breach. c. Compensation to Consultant Upon Termination. Consultant shall be paid compensation for Services satisfactorily performed prior to notice of termination. As to any phase partially performed but for Prepared Feb. 2022 4
which the applicable portion of Consultant's compensation has not become due, Consultant shall be paid the reasonable value of its Services provided. However, in no event shall such payment when added to any other payment due under the applicable part of the work exceed the total compensation of such part as specified Section 4. In the event of termination due to Consultant’s failure to perform in accordance with the terms of this Agreement through no fault of City, City may withhold an amount that would otherwise be payable as an offset to City's damages caused by such failure.
d. Effect of Termination. Upon termination of this Agreement, Consultant shall: (i) promptly discontinue all Services affected, unless the notice of termination directs otherwise; and (ii) deliver or otherwise make available to the City, without additional compensation, all Work Product and/or deliverables accumulated by the Consultant in performing this Agreement, whether completed or in process. Consultant may not refuse to provide such Work Product for any reason whatsoever.
18. Insurance. Consultant shall satisfy the insurance requirements set forth in Exhibit C.
19. Indemnity and Defense. Consultant hereby agrees to indemnify, defend but with no duty to provide an upfront defense, and hold the City, its officials, officers, and employees, from and against all claims, demands, causes of action, actions, damages, losses, expenses, and other liabilities, (including without limitation reasonable attorney fees and costs of litigation) of every nature to the extent caused by the alleged or actual acts, errors, omissions or negligence of Consultant or its subcontractors relating to the performance of Services described herein to the fullest extent permitted by law, unless the injuries or damages are the result of City's sole negligence or willful misconduct, subject to any limitations imposed by law. Consultant has no obligation to provide the City an immediate defense or pay for any of the City’s defense related costs prior to a final determination of liability or to pay any amount that exceeds Consultant’s finally determined percentage of liability based upon comparative fault of the Consultant in conformance with California Civil Code 2782.8. Consultant and City agree that said indemnity and defense obligations shall survive the expiration or termination of this Agreement for any items specified herein that arose or occurred during the term of this Agreement.
20. Taxes. Consultant agrees to pay all taxes, licenses, and fees levied or assessed by any governmental agency on Consultant incident to the performance of Services under this Agreement, and unemployment and workers’ compensation insurance, social security, or any other taxes upon the wages of Consultant, its employees, agents, and representatives. Consultant agrees to obtain and renew an annual business tax certificate from City and pay the applicable annual business registration tax to City during the term of this Agreement.
21. Assignment. Neither this Agreement nor any duties or obligations hereunder shall be assignable by Consultant without the prior written consent of City. In the event of an assignment to which City has consented, the assignee shall agree in writing to personally assume and perform the covenants, obligations, and agreements herein contained. In addition, Consultant shall not assign the payment of any monies due Consultant from City under the terms of this Agreement to any other individual, corporation or entity. City retains the right to pay any and all monies due Consultant directly to Consultant.
22. Form and Service of Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served upon, or given to either party to this Agreement by the other party shall be in writing and shall be deemed properly delivered, served or given by one of the following methods:
a. Personally, delivered to the party to whom it is directed. Service shall be deemed the date of delivery.
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b. Delivered by e-mail to a known address of the party to whom it is directed provided the email is accompanied by an acknowledgment of receipt by the other party. Service shall be deemed the date of acknowledgement.
c. Delivery by a reliable overnight delivery service, ex., Federal Express, receipted, addressed to the addressees set forth below the signatories to this Agreement. Service shall be deemed the date of delivery.
d. Delivery by deposit in the United States mail, first class, postage prepaid. Service shall be deemed delivered ninety-six (96) hours after deposit.
23. Entire Agreement. This Agreement, including the Exhibits and any other attachments, represents the entire Agreement between City and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral with respect to the subject matter herein. This Agreement may be amended only by written instrument signed by both City and Consultant.
24. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
25. [Reserved]
26. Severability. In the event any term or provision of this Agreement is declared to be invalid or illegal for any reason, this Agreement will remain in full force and effect and will be interpreted as though such invalid or illegal provision were not a part of this Agreement. The remaining provisions will be construed to preserve the intent and purpose of this Agreement and the parties will negotiate in good faith to modify any invalidated provisions to preserve each party’s anticipated benefits.
27. Applicable Law and Interpretation and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either party. This Agreement is entered into by City and Consultant in the County of Madera, California. Consultant shall perform the Services required under this Agreement in the County of Madera, California. Thus, in the event of litigation, venue shall only lie with the appropriate state or federal court in Madera County.
28. Amendments and Waiver. This Agreement shall not be modified or amended in any way, and no provision shall be waived, except in writing signed by the parties hereto. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not a signatory to this Agreement.
30. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy or an original, with all signatures appended together, shall be deemed a fully executed Agreement.
31. Alternative Dispute Resolution. If a dispute arises out of or relating to this Agreement, or the alleged breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by non-binding mediation before resorting to litigation. The mediator shall be Prepared Feb. 2022 6
mutually selected by the parties, but in case of disagreement, the mediator shall be selected by lot from among two nominations provided by each party. All costs and fees required by the mediator shall be split equally by the parties, otherwise each party shall bear its own costs of mediation. If mediation fails to resolve the dispute within thirty (30) days, either party may pursue litigation to resolve the dispute.
Demand for mediation shall be in writing and delivered to the other party to this Agreement.
A demand for mediation shall be made within reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by California statues of limitations.
32. Non-Discrimination. Consultant shall not discriminate on the basis of any protected class under federal or State law in the provision of the Services or with respect to any Consultant employees or applicants for employment. Consultant shall ensure that any subcontractors are bound to this provision. A protected class, includes, but is not necessarily limited to race, color, national origin, ancestry, religion, age, sex, sexual orientation, marital status, and disability.
33. Performance Requirements. Notwithstanding, and in addition to the provisions of, Section 17 of this Agreement, if the Services performed hereunder are not in conformity with the requirements of this Agreement and other pertinent documents, City shall have the right to require Consultant to correct the work in conformity with the requirements of this Agreement at no additional increase in the payment to Consultant. Consultant shall promptly correct the work rejected by City for failing to conform to the requirements of the Agreement. Remedy for non-compliance or non-performance shall commence within 24 hours of notice. City shall also have the right to require Consultant to take all necessary steps to ensure future performance of the Services in conformity with the requirements of this Agreement. In the event Consultant fails to correct the work or fails to take necessary steps to ensure future performance of the Services in conformity with the requirements of this Agreement, City shall have the right to immediately terminate this Agreement for default.
34. Licensing. Consultant shall maintain licenses throughout the performance of this Agreement.
Consultant shall also obtain and maintain a City of Chowchilla Business License prior to commencing performance of the Services.
37. Delay Damages. Time is of the essence with respect to this Agreement and the Services performed by Consultant. Consultant’s failure to timely complete the Services under this Agreement shall result in the assessment of delay damages at the rate of $50 per day for each calendar day the Services remain unfinished beyond the Completion Date or Services remains incomplete beyond any phase or milestone identified in the schedule as being subject to Delay Damages. The actual occurrence of damages and the actual amount of the damages which City would suffer for such delayed completion of the Services are impracticable and extremely difficult to calculate. Damages which City would suffer in the event of such delay include, but are not limited to, loss of the use of the other contractor’s work and the project, disruption of activities, costs of administration and supervision, and the incalculable inconvenience and loss suffered by the public.
Accordingly, the parties agree that the amount set forth herein shall be presumed to be the amount of damages which City shall directly incur for each calendar day that completion of the Services are delayed.
38. Prevailing Wages; Apprenticeship. When the Services constitute a public work under the Labor Code, the Services shall be performed in accordance with the provisions of Section 1770 et seq. of the Labor Code of the State of California, and all other applicable provisions concerning public works projects, which are hereby incorporated by reference and made a part hereof. Consultant shall be responsible for the payment of prevailing wages in accordance with State and Federal law. Consultant shall further be responsible for ensuring any subcontractors comply with any requirements for the payment of prevailing wages in accordance with State and Federal law, if applicable. The Consultant and any subcontractor under the Prepared Feb. 2022 7
Consultant as a penalty to the Owner shall forfeit not more than Two Hundred Dollars ($200.00) for each calendar day or portion thereof for each worker paid less than the stipulated prevailing rates for such work or craft in which such worker is employed. The difference between such stipulated 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 stipulated prevailing wage rate shall be paid to each worker by the Consultant. Consultant shall comply with all requirements and obligations relating to apprentices, apprenticeships, and/or apprenticeable crafts or trades, as applicable, including but not limited to Labor Code section 1775.5. Consultant shall register with the Department of Industrial Relations, if required.
Now, therefore, the City and Consultant have executed this Agreement on the date(s) set forth below.
CONSULTANT CITY OF CHOWCHILLA
Brandley Engineering
6125 Kings Road, Suite 201
Loomis, CA 95650
By: __________________________ By: ______________________________ Melissa S. Brandley, P.E 71139 Rod Pruett, City Administrator Date: __________________ Date: ______________________
ATTEST
_______________________________
Joann McClendon, City Clerk
APPROVED AS TO FORM
_______________________________
Mary Lerner, City Attorney
J:\wdocs\03326\001\AGT\00921844.DOC
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EXHIBIT A
REQUEST FOR PROPOSAL
EXHIBIT B
CONSULTANT PROPOSAL
Prepared Feb. 2022 9
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to commencement of the Services, Consultant shall take out and maintain at its own expense the insurance coverage required by this Exhibit C. Consultant shall cause any subcontractor with whom Consultant contracts for the performance of Services pursuant to this Agreement to take out and maintain equivalent insurance coverage. Said insurance shall be maintained at all times during Consultant’s performance of Services under this Agreement, and for any additional period specified herein. All insurance shall be placed with insurance companies that are licensed and admitted to conduct business in the State of California and are rated at a minimum with an "A:VII" by A.M. Best Company, unless otherwise acceptable to the City.
a. Minimum Limits of Insurance. Consultant shall maintain the following types of insurance with limits no less than specified:
(i) Professional Liability Insurance (Errors and Omissions) in an amount not less than $2,000,000.00 per occurrence or claim and $2,000,000 in the aggregate. Said insurance shall be maintained for an additional period of five years following the earlier of completion of Consultant’s Services under this Agreement or termination of this Agreement.
(ii) General Liability Insurance (including operations, products and completed operations coverages) in an amount not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
(iii) Worker's Compensation Insurance as required by the State of California. (iv) Automobile Liability Insurance in an amount not less than $1,000,000 per accident for bodily injury and property damage.
(v) Umbrella or Excess Liability. In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers.
If Consultant maintains higher limits than the minimums shown above, the City shall be entitled to coverage at the higher limits maintained.
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b. Other Insurance Provisions. The general liability policy is to contain, or be endorsed to contain, the following provisions:
(i) The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insured's with respect to the insurance required herein. Coverage shall be provided in the form of an endorsement to the Consultant’s insurance.
(ii) For any claims related to the Services performed pursuant to this Agreement, the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
(iii) Each insurance policy required by this section shall be endorsed to state that the City shall receive written notice at least thirty (30) days prior to the cancellation, non-renewal, or material modification of the coverages required herein.
(iv) Consultant grants to the City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
(v) Any deductibles or self-insured retentions must be declared to and approved by the City of Chowchilla. The City may require the Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
c. Evidence of Coverage. Consultant shall deliver to City written evidence of the above insurance coverages, including the required endorsements prior to commencing Services under this Agreement; and the production of such written evidence shall be an express condition precedent, notwithstanding anything to the contrary in this Agreement, to Consultant's right to be paid any compensation under this Agreement. City's failure, at any time, to object to Consultant's failure to provide the specified insurance or written evidence thereof (either as to the type or amount of such insurance), shall not be deemed a waiver of City's right to insist upon such insurance later. d. Maintenance of Insurance. If Consultant fails to furnish and maintain the insurance required by this section, City may (but is not required to) purchase such insurance on behalf of Consultant, and the Consultant shall pay the cost thereof to City upon demand, and City shall furnish Consultant with any information needed to obtain such insurance. Moreover, at its discretion, City may pay for such insurance with funds otherwise due Consultant under this Agreement. e. Subcontractors. If the Consultant should subcontract all or any portion of the work to be performed in this Agreement, the Consultant shall cover the subcontractor, and/or require each subcontractor to adhere to all the requirements contained herein. Similarly, any cancellation, lapse, reduction or change of subcontractor’s insurance shall have the same impact as described above. f. Special Risks or Circumstances. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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g. Indemnity and Defense. Except as otherwise expressly provided, the insurance requirements in this section shall not in any way limit, in either scope or amount, the indemnity and defense obligations separately owed by Consultant to City under this Agreement.
CITY OF CHOWCHILLA
CONSULTANT SERVICE AGREEMENT
This Consultant Services Agreement ("Agreement") is entered into between the City of Chowchilla, a California general law city ("City") and Brandley Engineering ("Consultant") with respect to the following recitals, which are a substantive part of this Agreement. This Agreement shall be effective on August 27, 2023 ("Effective Date").
RECITALS
A. City desires to obtain Airport Planning & Environmental Consultant ("Services") more fully described in Exhibit A, and, if applicable, as further set forth in the proposal from Consultant attached as Exhibit B (“Consultant’s Proposal”), which are incorporated herein by reference.
B. Consultant is engaged in the business of furnishing the Services and hereby warrants and represents that Consultant is qualified, experienced, and capable of performing the Services, and possesses any required licenses, certifications, security/bonding, and/or training necessary to perform the Services.
C. City desires to retain Consultant, and Consultant desires to provide the City with the Services, on the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual agreements herein, City and Consultant agree as follows:
AGREEMENT
1. Scope of Services. Consultant shall perform the Services described in the Recitals and detailed in Exhibits A & B. Changes in the scope of Services, including the work performed and/or deliverables produced, shall be made in writing and particularly describe the changes in Services, including payment/costs and schedule/term, as applicable.
2. Priority and Conflicts; Exclusions. If the terms and requirements of this Agreement and/or Exhibit A conflict with Exhibit B, this Agreement and Exhibit A shall control. No contractual terms and/or conditions found in Exhibit B shall purport to waive, disclaim, or limit Consultant’s liability, indemnification obligations, warranties, damages for breach or delay, or any security, bonding, or insurance requirements, and any such provisions shall have no force or effect with respect to this Agreement and the Services performed by Consultant.
3. Term of Agreement; Commencement of Services; Schedule. The term of this Agreement shall commence on August 27, 2024, and Consultant shall begin performing the Services on that date, unless otherwise instructed by City. This Agreement shall terminate on August 27, 2029, unless extended beyond that date by mutual consent of the Parties, for a period not exceeding 5 years. This Agreement may be terminated prior to the end of the term pursuant to Section 17 herein.
4. Payment for Services. City shall pay Consultant for the Services performed pursuant to this Agreement according to the rate(s) stated in Exhibit A or in Consultant’s Proposal, which is set forth in Exhibit B, as applicable.
The foregoing is inclusive of all labor, equipment, materials, costs and expenses, taxes, and overhead. City shall pay Consultant for Services satisfactorily performed pursuant to this Agreement. Consultant shall Prepared Feb. 2022 2
submit monthly invoices to City containing detailed billing information regarding the Services provided and unless otherwise specified in Exhibit A, City shall tender payment to Consultant within thirty (30) days after receipt of invoice.
5. Independent Contractor Status. Consultant and its subcontractors shall perform the Services as independent contractors and not as officers, employees, agents or volunteers of City. Consultant is engaged in an independently established trade, occupation, or business to perform the Services required by this Agreement and is hereby retained to perform work that is outside the usual course of City’s business.
Consultant is free from the control and direction of City in connection with the manner of performance of the work. Nothing contained in this Agreement shall be deemed to create any contractual relationship between City and Consultant's employees or subcontractors, nor shall anything contained in this Agreement be deemed to give any third party, including but not limited to Consultant's employees or subcontractors, any claim or right of action against City.
6. Consultant Representations; Standard of Care; Compliance with Law. Consultant represents that Consultant and any subcontractors utilized by Consultant are and will be qualified in the field for which Services are being provided under this Agreement and Consultant and any subcontractors are now, and will be throughout their performance of the Services under this Agreement, properly licensed, certified, secured/bonded, trained, and/or otherwise qualified and authorized to perform the Services required and contemplated by this Agreement, as may be required by law. Consultant and its subcontractors shall utilize the standard of care and skill customarily exercised by members of their profession, shall use reasonable diligence and best judgment while performing the Services, and shall comply with all applicable laws, regulations, and industry standards. Consultant shall comply with all Labor Code requirements for public works projects if applicable to Consultant’s work under this Agreement.
7. [Reserved]
8. Subcontractor Provisions. Consultant shall include in its written agreements with its subcontractors, if any, provisions which: (a) impose upon the subcontractors the obligation to provide to City the same insurance and indemnity obligations that Consultant owes to City; (b) make clear that City intends to rely upon the reports, opinions, conclusions and other work product prepared and performed by subcontractors for Consultant; and (c) entitle City to impose upon subcontractors the assignment rights found elsewhere in this Agreement.
9. Power to Act on Behalf of City. Consultant is not acting as an agent of City and shall not have any right, power, or authority to create any obligation, express or implied, or make representations on behalf of City except as may be expressly authorized in advance in writing from time to time by City and then only to the extent of such authorization.
10. Record Keeping; Reports. Consultant shall keep complete records showing the type of Services performed. Consultant shall be responsible and shall require its subcontractors to keep similar records. City shall be given reasonable access to the records of Consultant and its subcontractors for inspection and audit purposes. Consultant shall provide City with a working draft of all reports upon reasonable request by City and of all final reports prepared by Consultant under this Agreement.
11. Ownership and Inspection of Documents. All data, tests, reports, analyses, documents, records, conclusions, opinions, recommendations and other work product generated by or produced for Consultant or its subcontractors in connection with the Services, regardless of the medium, including physical drawings and materials recorded on computer discs or other electronic devices ("Work Product"), shall be and remain the property of City. City shall have the right to use, copy, modify, and reuse the Work Product as it sees fit.
Upon City's request, Consultant shall make available for inspection and copying all such Work Product and Prepared Feb. 2022 3
all Work product shall be turned over to City promptly at City's request or upon termination of this Agreement, whichever occurs first. Consultant shall not release any Work Product to third parties without prior written approval of City. This obligation shall survive termination of this Agreement and shall survive for four (4) years from the date of expiration or termination of this Agreement.
12. Confidentiality. All Work Product prepared and performed by and on behalf of Consultant in connection with the Services performed pursuant to this Agreement shall be kept confidential and shall be disclosed only to City, unless otherwise provided by law or expressly authorized by City. Consultant shall not disclose or permit the disclosure of any confidential information acquired during performance of the Services, except to its agents, employees and subcontractors who need such confidential information in order to properly perform their duties relative to this Agreement. Consultant shall also require its subcontractors to be bound to these confidentiality provisions.
13. City Name and Logo. Consultant shall not use City's name or insignia, photographs relating to the City projects or work for which Consultant's services are rendered, or any publicity pertaining to the Consultant's Services under this Agreement in any magazine, trade paper, newspaper, television or radio production, internet website, social media, or other similar medium without the prior written consent of City.
14. Conflicts of Interest. Consultant warrants that neither Consultant nor any of its employees have an improper interest, present or contemplated, in the Services which would affect Consultant’s or its employees’ performance of the Services and the Work Product produced. Consultant further warrants that neither Consultant nor any of its employees have real property, business interests or income that will be affected by the Services. Consultant covenants that no person having any such interest, whether an employee or subcontractor shall perform the Services under this Agreement. During the performance of the Services, Consultant shall not employ or retain the services of any person who is employed by the City or a member of any City Board or Commission.
15. Non-liability of Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successors in interest, in the event of a default or breach by City for any amount which may become due Consultant or its successor, or for any breach of any obligation under the terms of this Agreement.
16. City Right to Employ Other Consultants. Unless Exhibit A specifically provides that the Services City seeks pursuant to this Agreement are exclusive to Consultant, this Agreement and performance of the Services are non-exclusive and City reserves the right to employ other consultants in connection with the Services while this Agreement is in effect.
17. Termination of Agreement. This Agreement shall terminate as provided in Section 3, unless terminated earlier pursuant to the following:
a. Termination by City: For Convenience. City may at its discretion terminate this Agreement for convenience and without cause upon fourteen (14) days prior written notice to Consultant. Upon receipt of a termination notice pursuant to this subsection, Consultant shall promptly discontinue all Services affected, unless the notice directs otherwise.
b. Termination by City or Consultant: For Cause. Either party may terminate this Agreement upon ten (10) days prior written notice to the other party of a material breach, and a failure within that time period to cure or commence reasonable steps to cure the breach. c. Compensation to Consultant Upon Termination. Consultant shall be paid compensation for Services satisfactorily performed prior to notice of termination. As to any phase partially performed but for Prepared Feb. 2022 4
which the applicable portion of Consultant's compensation has not become due, Consultant shall be paid the reasonable value of its Services provided. However, in no event shall such payment when added to any other payment due under the applicable part of the work exceed the total compensation of such part as specified Section 4. In the event of termination due to Consultant’s failure to perform in accordance with the terms of this Agreement through no fault of City, City may withhold an amount that would otherwise be payable as an offset to City's damages caused by such failure.
d. Effect of Termination. Upon termination of this Agreement, Consultant shall: (i) promptly discontinue all Services affected, unless the notice of termination directs otherwise; and (ii) deliver or otherwise make available to the City, without additional compensation, all Work Product and/or deliverables accumulated by the Consultant in performing this Agreement, whether completed or in process. Consultant may not refuse to provide such Work Product for any reason whatsoever.
18. Insurance. Consultant shall satisfy the insurance requirements set forth in Exhibit C.
19. Indemnity and Defense. Consultant hereby agrees to indemnify, defend but with no duty to provide an upfront defense, and hold the City, its officials, officers, and employees, from and against all claims, demands, causes of action, actions, damages, losses, expenses, and other liabilities, (including without limitation reasonable attorney fees and costs of litigation) of every nature to the extent caused by the alleged or actual acts, errors, omissions or negligence of Consultant or its subcontractors relating to the performance of Services described herein to the fullest extent permitted by law, unless the injuries or damages are the result of City's sole negligence or willful misconduct, subject to any limitations imposed by law. Consultant has no obligation to provide the City an immediate defense or pay for any of the City’s defense related costs prior to a final determination of liability or to pay any amount that exceeds Consultant’s finally determined percentage of liability based upon comparative fault of the Consultant in conformance with California Civil Code 2782.8. Consultant and City agree that said indemnity and defense obligations shall survive the expiration or termination of this Agreement for any items specified herein that arose or occurred during the term of this Agreement.
20. Taxes. Consultant agrees to pay all taxes, licenses, and fees levied or assessed by any governmental agency on Consultant incident to the performance of Services under this Agreement, and unemployment and workers’ compensation insurance, social security, or any other taxes upon the wages of Consultant, its employees, agents, and representatives. Consultant agrees to obtain and renew an annual business tax certificate from City and pay the applicable annual business registration tax to City during the term of this Agreement.
21. Assignment. Neither this Agreement nor any duties or obligations hereunder shall be assignable by Consultant without the prior written consent of City. In the event of an assignment to which City has consented, the assignee shall agree in writing to personally assume and perform the covenants, obligations, and agreements herein contained. In addition, Consultant shall not assign the payment of any monies due Consultant from City under the terms of this Agreement to any other individual, corporation or entity. City retains the right to pay any and all monies due Consultant directly to Consultant.
22. Form and Service of Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served upon, or given to either party to this Agreement by the other party shall be in writing and shall be deemed properly delivered, served or given by one of the following methods:
a. Personally, delivered to the party to whom it is directed. Service shall be deemed the date of delivery.
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b. Delivered by e-mail to a known address of the party to whom it is directed provided the email is accompanied by an acknowledgment of receipt by the other party. Service shall be deemed the date of acknowledgement.
c. Delivery by a reliable overnight delivery service, ex., Federal Express, receipted, addressed to the addressees set forth below the signatories to this Agreement. Service shall be deemed the date of delivery.
d. Delivery by deposit in the United States mail, first class, postage prepaid. Service shall be deemed delivered ninety-six (96) hours after deposit.
23. Entire Agreement. This Agreement, including the Exhibits and any other attachments, represents the entire Agreement between City and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral with respect to the subject matter herein. This Agreement may be amended only by written instrument signed by both City and Consultant.
24. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
25. [Reserved]
26. Severability. In the event any term or provision of this Agreement is declared to be invalid or illegal for any reason, this Agreement will remain in full force and effect and will be interpreted as though such invalid or illegal provision were not a part of this Agreement. The remaining provisions will be construed to preserve the intent and purpose of this Agreement and the parties will negotiate in good faith to modify any invalidated provisions to preserve each party’s anticipated benefits.
27. Applicable Law and Interpretation and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either party. This Agreement is entered into by City and Consultant in the County of Madera, California. Consultant shall perform the Services required under this Agreement in the County of Madera, California. Thus, in the event of litigation, venue shall only lie with the appropriate state or federal court in Madera County.
28. Amendments and Waiver. This Agreement shall not be modified or amended in any way, and no provision shall be waived, except in writing signed by the parties hereto. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not a signatory to this Agreement.
30. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy or an original, with all signatures appended together, shall be deemed a fully executed Agreement.
31. Alternative Dispute Resolution. If a dispute arises out of or relating to this Agreement, or the alleged breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by non-binding mediation before resorting to litigation. The mediator shall be Prepared Feb. 2022 6
mutually selected by the parties, but in case of disagreement, the mediator shall be selected by lot from among two nominations provided by each party. All costs and fees required by the mediator shall be split equally by the parties, otherwise each party shall bear its own costs of mediation. If mediation fails to resolve the dispute within thirty (30) days, either party may pursue litigation to resolve the dispute.
Demand for mediation shall be in writing and delivered to the other party to this Agreement.
A demand for mediation shall be made within reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by California statues of limitations.
32. Non-Discrimination. Consultant shall not discriminate on the basis of any protected class under federal or State law in the provision of the Services or with respect to any Consultant employees or applicants for employment. Consultant shall ensure that any subcontractors are bound to this provision. A protected class, includes, but is not necessarily limited to race, color, national origin, ancestry, religion, age, sex, sexual orientation, marital status, and disability.
33. Performance Requirements. Notwithstanding, and in addition to the provisions of, Section 17 of this Agreement, if the Services performed hereunder are not in conformity with the requirements of this Agreement and other pertinent documents, City shall have the right to require Consultant to correct the work in conformity with the requirements of this Agreement at no additional increase in the payment to Consultant. Consultant shall promptly correct the work rejected by City for failing to conform to the requirements of the Agreement. Remedy for non-compliance or non-performance shall commence within 24 hours of notice. City shall also have the right to require Consultant to take all necessary steps to ensure future performance of the Services in conformity with the requirements of this Agreement. In the event Consultant fails to correct the work or fails to take necessary steps to ensure future performance of the Services in conformity with the requirements of this Agreement, City shall have the right to immediately terminate this Agreement for default.
34. Licensing. Consultant shall maintain licenses throughout the performance of this Agreement.
Consultant shall also obtain and maintain a City of Chowchilla Business License prior to commencing performance of the Services.
37. Delay Damages. Time is of the essence with respect to this Agreement and the Services performed by Consultant. Consultant’s failure to timely complete the Services under this Agreement shall result in the assessment of delay damages at the rate of $50 per day for each calendar day the Services remain unfinished beyond the Completion Date or Services remains incomplete beyond any phase or milestone identified in the schedule as being subject to Delay Damages. The actual occurrence of damages and the actual amount of the damages which City would suffer for such delayed completion of the Services are impracticable and extremely difficult to calculate. Damages which City would suffer in the event of such delay include, but are not limited to, loss of the use of the other contractor’s work and the project, disruption of activities, costs of administration and supervision, and the incalculable inconvenience and loss suffered by the public.
Accordingly, the parties agree that the amount set forth herein shall be presumed to be the amount of damages which City shall directly incur for each calendar day that completion of the Services are delayed.
38. Prevailing Wages; Apprenticeship. When the Services constitute a public work under the Labor Code, the Services shall be performed in accordance with the provisions of Section 1770 et seq. of the Labor Code of the State of California, and all other applicable provisions concerning public works projects, which are hereby incorporated by reference and made a part hereof. Consultant shall be responsible for the payment of prevailing wages in accordance with State and Federal law. Consultant shall further be responsible for ensuring any subcontractors comply with any requirements for the payment of prevailing wages in accordance with State and Federal law, if applicable. The Consultant and any subcontractor under the Prepared Feb. 2022 7
Consultant as a penalty to the Owner shall forfeit not more than Two Hundred Dollars ($200.00) for each calendar day or portion thereof for each worker paid less than the stipulated prevailing rates for such work or craft in which such worker is employed. The difference between such stipulated 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 stipulated prevailing wage rate shall be paid to each worker by the Consultant. Consultant shall comply with all requirements and obligations relating to apprentices, apprenticeships, and/or apprenticeable crafts or trades, as applicable, including but not limited to Labor Code section 1775.5. Consultant shall register with the Department of Industrial Relations, if required.
Now, therefore, the City and Consultant have executed this Agreement on the date(s) set forth below.
CONSULTANT CITY OF CHOWCHILLA
Brandley Engineering
6125 Kings Road, Suite 201
Loomis, CA 95650
By: __________________________ By: ______________________________ Melissa S. Brandley, P.E 71139 Rod Pruett, City Administrator Date: __________________ Date: ______________________
ATTEST
_______________________________
Joann McClendon, City Clerk
APPROVED AS TO FORM
_______________________________
Mary Lerner, City Attorney
J:\wdocs\03326\001\AGT\00921844.DOC
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EXHIBIT A
REQUEST FOR PROPOSAL
EXHIBIT B
CONSULTANT PROPOSAL
Prepared Feb. 2022 9
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to commencement of the Services, Consultant shall take out and maintain at its own expense the insurance coverage required by this Exhibit C. Consultant shall cause any subcontractor with whom Consultant contracts for the performance of Services pursuant to this Agreement to take out and maintain equivalent insurance coverage. Said insurance shall be maintained at all times during Consultant’s performance of Services under this Agreement, and for any additional period specified herein. All insurance shall be placed with insurance companies that are licensed and admitted to conduct business in the State of California and are rated at a minimum with an "A:VII" by A.M. Best Company, unless otherwise acceptable to the City.
a. Minimum Limits of Insurance. Consultant shall maintain the following types of insurance with limits no less than specified:
(i) Professional Liability Insurance (Errors and Omissions) in an amount not less than $2,000,000.00 per occurrence or claim and $2,000,000 in the aggregate. Said insurance shall be maintained for an additional period of five years following the earlier of completion of Consultant’s Services under this Agreement or termination of this Agreement.
(ii) General Liability Insurance (including operations, products and completed operations coverages) in an amount not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
(iii) Worker's Compensation Insurance as required by the State of California. (iv) Automobile Liability Insurance in an amount not less than $1,000,000 per accident for bodily injury and property damage.
(v) Umbrella or Excess Liability. In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers.
If Consultant maintains higher limits than the minimums shown above, the City shall be entitled to coverage at the higher limits maintained.
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b. Other Insurance Provisions. The general liability policy is to contain, or be endorsed to contain, the following provisions:
(i) The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insured's with respect to the insurance required herein. Coverage shall be provided in the form of an endorsement to the Consultant’s insurance.
(ii) For any claims related to the Services performed pursuant to this Agreement, the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
(iii) Each insurance policy required by this section shall be endorsed to state that the City shall receive written notice at least thirty (30) days prior to the cancellation, non-renewal, or material modification of the coverages required herein.
(iv) Consultant grants to the City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
(v) Any deductibles or self-insured retentions must be declared to and approved by the City of Chowchilla. The City may require the Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
c. Evidence of Coverage. Consultant shall deliver to City written evidence of the above insurance coverages, including the required endorsements prior to commencing Services under this Agreement; and the production of such written evidence shall be an express condition precedent, notwithstanding anything to the contrary in this Agreement, to Consultant's right to be paid any compensation under this Agreement. City's failure, at any time, to object to Consultant's failure to provide the specified insurance or written evidence thereof (either as to the type or amount of such insurance), shall not be deemed a waiver of City's right to insist upon such insurance later. d. Maintenance of Insurance. If Consultant fails to furnish and maintain the insurance required by this section, City may (but is not required to) purchase such insurance on behalf of Consultant, and the Consultant shall pay the cost thereof to City upon demand, and City shall furnish Consultant with any information needed to obtain such insurance. Moreover, at its discretion, City may pay for such insurance with funds otherwise due Consultant under this Agreement. e. Subcontractors. If the Consultant should subcontract all or any portion of the work to be performed in this Agreement, the Consultant shall cover the subcontractor, and/or require each subcontractor to adhere to all the requirements contained herein. Similarly, any cancellation, lapse, reduction or change of subcontractor’s insurance shall have the same impact as described above. f. Special Risks or Circumstances. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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g. Indemnity and Defense. Except as otherwise expressly provided, the insurance requirements in this section shall not in any way limit, in either scope or amount, the indemnity and defense obligations separately owed by Consultant to City under this Agreement.
REPORT TO THE CITY COUNCIL
Item 6.5
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: August 27, 2024
AGENDA SECTION: New Business
SUBJECT: Consideration to Appoint a Primary and up to Two Alternate Voting Delegates for the League of California Cities (LOCC) Business Meeting at the 2024 Annual Conference in Long Beach
PREPARED BY: Joann McClendon, City Clerk
ATTACHMENTS: None
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the Council appoint a Council Member as the Voting Delegate and another Council Member as the Alternate for the League of California Cities Annual Conference Business Meeting. It is preferred that the voting member and alternate be elected city officials; a staff member could serve as the second alternate.
BACKGROUND:
The League of California Cities 2024 Annual Conference is scheduled for Wednesday, October 16 through Friday October 18. An important part of the Annual Conference is the Annual Business Meeting, during General Assembly, on Friday, October 18. At this meeting, the League membership considers and acts on resolutions that establish League policy. In order to vote at the Annual Business Meeting, the City must designate a voting delegate and up to two alternate voting delegates, one of whom may vote in the event that the designated voting delegate is unable to do so.
This years Annual Conference will be in Long Beach, California.
Last year, Council Member Ahmed was the Primary Voting Delegate and Council Member Chavez was the Alternate.
REASON FOR RECOMMENDATION:
It is a requirement of the League of California Cities to assign a delegate and up to two alternates in order to vote at the Annual Business Meeting.
FISCAL IMPACT:
Conference registration: $700/Delegates for full conference, $240 +/- per night for hotel. All costs were budgeted for in the 2024/25 budget under account 100-1605-3052.
ACTIONS FOLLOWING APPROVAL:
Complete the Voting Delegate online form via the League of California Cities member login portal.