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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: John Abraham Name: Valerie Barone
Title: Regional Manager Title: City Manager
Address: 40 Berry Dr. Address: 1950 Parkside Drive, MS 01 Pacheco, CA 94553 Concord, CA 94519
Telephone: 925-293-9455
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Fehr & Peers (hereinafter “CONSULTANT”), whose address is 100 Pringle Avenue, Suite 600, Walnut Creek, CA 94596.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Traffic Engineering/ Design
• Transportation Planning
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed in accordance with the care, skill, and diligence ordinarily exercised by professionals providing similar services under similar circumstances to that of CONSULTANT under this AGREEMENT.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall Attachment 4
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be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Ryan McClain, Principal.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, and employees) against liability for claims against the CITY to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence,
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recklessness, or willful misconduct of the CONSULTANT. However, in no event shall the cost to defend charged to CONSULTANT exceed CONSULTANT’s proportionate percentage of fault.
B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, and employees) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement (“Work Product”) shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use. CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law. However, notwithstanding the foregoing, or anything to the contrary herein, CONSULTANT shall retain all rights, titles, and interests, including but not limited to all ownership and intellectual property rights, in all inventions,
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improvements, discoveries, methodologies, models, formats, software, algorithms, processes, procedures, designs, specifications, findings, and other intellectual properties developed, gathered, compiled or produced by CONSULTANT prior to or independently of any of its services under this Agreement (“Background IP”), including such Background IP that CONSULTANT may employ in the performance of this Agreement, or may incorporate into any part of the Work Product. CONSULTANT grants CITY an irrevocable, non-exclusive, transferable, royalty-free license in perpetuity to use, disclose, and derive from such Background IP, but only as an inseparable part of the Work Product. Third-party content that may be used or incorporated in the Work Product shall not become the property of CITY. CONSULTANT shall secure all licenses necessary to any thirdparty content incorporated into CONSULTANT’s Work Product for CITY to utilize CONSULTANT’s services and the Work Product for their intended purposes.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in accordance with the care, skill, and diligence ordinarily exercised by professionals providing similar services under similar circumstances to that of CONSULTANT under the Agreement. CONSULTANT further agrees that the services shall be in conformance with generally accepted professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and
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reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
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A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
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In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and
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shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Ryan McClain, Principal
Fehr & Peers
100 Pringle Avenue, Suite 600
Walnut Creek, CA 94596
Phone: 925-930-7100
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
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No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Ryan McClain Name: Valerie Barone
Title: Principal Title: City Manager
Address: 100 Pringle Avenue, Suite 600 Address: 1950 Parkside Drive, MS 01 Walnut Creek, CA 94596 Concord, CA 94519
Telephone: 925-930-7100
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and GHD (hereinafter “CONSULTANT”), whose address is 2300 Clayton Road, Suite 920, Concord, CA 94520.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Transportation Planning
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for Attachment 5
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each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval. CONSULTANT authorized representative shall be Peter Galloway, Sr. Transportation Planner.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims,
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demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
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CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising;
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layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in
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the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
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The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
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To CONSULTANT Peter Galloway, Sr. Transportation Planner GHD
2300 Clayton Road, Suite 920
Concord, CA 94520
Phone: 925-262-1903
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Kamesh Vedula, PE, TE Name: Valerie Barone
Title: Project Director Title: City Manager
Address: 2300 Clayton Road, Suite 920 Address: 1950 Parkside Drive, MS 01 Concord, CA 94520 Concord, CA 94519
Telephone: 916-918-0622
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Idax (hereinafter “CONSULTANT”), whose address is 421 N Buchanan Circle Suite 7, Pacheco, CA 94553.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Data Collection
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for Attachment 6
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each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Robert Donnell, Operations Manager.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted
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professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on
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the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
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In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a
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party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
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1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Robert Donnell, Operations Manager
Idax
421 N Buchanan Circle Suite 7
Pacheco, CA 94553
Phone: 415-757-7714
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Robert Donnell Name: Valerie Barone
Title: Operations Manager Title: City Manager
Address: 421 N Buchanan Circle Suite 7 Address: 1950 Parkside Drive, MS 01 Pacheco, CA 94553 Concord, CA 94519
Telephone: 415-757-7714
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Iteris, Inc. (hereinafter “CONSULTANT”), whose address is 1999 Harrison Street, Suite 1675, Oakland, CA 94612.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Traffic Engineering/ Design
• Signal System & Fiber Optic Field Support
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of Attachment 7
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CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Steven Bradley, Regional Vice President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted
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professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on
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the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
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In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a
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party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
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1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Steven Bradley, Regional Vice President
Iteris, Inc.
1999 Harrison Street, Suite 1675
Oakland, CA 94612
Phone: 510-295-4607
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Steven Bradley Name: Valerie Barone
Title: Regional Vice President Title: City Manager
Address: 1999 Harrison Street, Suite 1675 Address: 1950 Parkside Drive, MS 01 Oakland, CA 94612 Concord, CA 94519
Telephone: 510-295-4607
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Kimley-Horn & Associates, Inc. (hereinafter “CONSULTANT”), whose address is 4637 Chabot Drive, Suite 300, Pleasanton, CA 94588.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Traffic Engineering/ Design
• Transportation Planning
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of Attachment 8
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CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Brian Sowers, Sr. Vice President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that to the extent arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT. Notwithstanding any other provision of this
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Agreement, in no event shall the cost to defend charged to CONSULTANT exceed the CONSULTANT’s proportionate percentage of fault.
B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious
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manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
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A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of
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information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining
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provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
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To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Brian Sowers, Sr. Vice President
Kimley-Horn & Associates, Inc.
4637 Chabot Drive, Suite 300
Pleasanton, CA 94588
Phone: 925-398-4840
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
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[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Brian Sowers Name: Valerie Barone
Title: Sr. Vice President Title: City Manager
Address: 4637 Chabot Drive, Suite 300 Address: 1950 Parkside Drive, MS 01 Pleasanton, CA 94588 Concord, CA 94519
Telephone: 925-398-4840
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Kittelson & Associates, Inc. (hereinafter “CONSULTANT”), whose address is 155 Grand Avenue, Suite 505, Oakland, CA 94612.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Transportation Planning
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for Attachment 9
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each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Laurence Lewis, Sr. Principal Planner.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted
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professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on
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the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
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In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a
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party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
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1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Laurence Lewis, Sr. Principal Planner
Kittelson & Associates, Inc.
155 Grand Avenue, Suite 505
Oakland, CA 94612
Phone: 510-839-1742
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Laurence Lewis Name: Valerie Barone
Title: Sr. Principal Planner Title: City Manager
Address: 155 Grand Avenue, Suite 505 Address: 1950 Parkside Drive, MS 01 Oakland, CA 94612 Concord, CA 94519
Telephone: 510-839-1742
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Quality Counts (hereinafter “CONSULTANT”), whose address is 2455 Bates Avenue, Suite C, Concord, CA 94529.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Data Collection
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for Attachment 10
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each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Dan Franz, Director of Operations.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted
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professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on
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the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
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In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a
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party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
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1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Dan Franz, Director of Operations
Quality Counts
2455 Bates Avenue, Suite C
Concord, CA 94529
Phone: 916-730-2478
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Dan Franz Name: Valerie Barone
Title: Director of Operations Title: City Manager
Address: 2455 Bates Avenue, Suite C Address: 1950 Parkside Drive, MS 01 Concord, CA 94529 Concord, CA 94519
Telephone: 916-730-2478
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and TJKM Transportation Consultants (hereinafter “CONSULTANT”), whose address is 4305 Hacienda Drive, Suite 550, Pleasanton, CA 94588.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Traffic Engineering/ Design
• Transportation Planning
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of Attachment 11
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CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Nayan Amin, President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted
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professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on
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the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
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In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a
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party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
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1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Nayan Amin, President
TJKM Transportation Consultants
4305 Hacienda Drive, Suite 550
Pleasanton, CA 94588
Phone: 925-463-0611
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Nayan Amin Name: Valerie Barone
Title: President Title: City Manager
Address: 4305 Hacienda Drive, Suite 550 Address: 1950 Parkside Drive, MS 01 Pleasanton, CA 94588 Concord, CA 94519
Telephone: 925-463-0611
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Western Pacific Signal, LLC (hereinafter “CONSULTANT”), whose address is 15890 Foothill Blvd., San Leandro, CA 94578.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Signal System & Fiber Optic Field Support
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for Attachment 12
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each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Donald R. Shupp, President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted
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professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on
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the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
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In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a
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party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
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1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Donald R. Shupp, President
Western Pacific Signal, LLC
15890 Foothill Blvd.
San Leandro, CA 94578
Phone: 510-276-6400
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Donald R. Shupp Name: Valerie Barone
Title: President Title: City Manager
Address: 15890 Foothill Blvd. Address: 1950 Parkside Drive, MS 01 San Leandro, CA 94578 Concord, CA 94519
Telephone: 510-276-6400
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2023 by and between the City of Concord, a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and W-Trans (hereinafter “CONSULTANT”), whose address is 414 13th St. Fifth Floor, Oakland, CA 94612.
THE PARTIES ENTER THIS AGREEMENT based upon the following facts, understandings and intentions:
CITY desires to contract with CONSULTANT and CONSULTANT to contract with CITY for provision by CONSULTANT to CITY for professional services as further described herein, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties herein contained, the parties hereto agree as follows:
1. SERVICES.
CONSULTANT shall provide services for specific projects as may be requested by CITY; such services shall be defined, scheduled and authorized in subsequent Task Orders. Services may include, but not be limited to:
• Traffic Engineering/ Design
• Transportation Planning
• Other as-needed services
CONSULTANT shall be an independent contractor and shall have responsibility for and control over the details and means of providing its services under this AGREEMENT. CONSULTANT agrees that its services shall be performed with due diligence and in accordance with generally accepted engineering practices.
CONSULTANT shall use its best efforts to perform and coordinate all activities in a timely manner so that the projects will be completed according to the established project schedules.
2. AUTHORIZED REPRESENTATIVES.
Authorized representatives shall represent CITY and CONSULTANT in all matters pertaining to the services to be ordered by CITY or rendered by CONSULTANT under this Agreement except where approval for the CITY is specifically required by the City Council. The CITY’S authorized representative shall be Abhishek Parikh, Deputy Director. Said representative is authorized to execute Task Orders on behalf of Attachment 13
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CITY, including providing for CONSULTANT to be compensated not more than the Minimum Threshold for each project throughout the term of this Agreement. “Minimum Threshold” means the dollar amount over which Council approval is required during each fiscal year as set forth in Concord City Council Resolution 21-43 pursuant to Concord Municipal Code Section 3.10.040(a). The Minimum Threshold for Fiscal Year 2023-24 is $85,000 and increases by $5,000 each subsequent fiscal year such that by Fiscal Year 2026-27 the Minimum Threshold is $100,000. Task Orders providing for more than the Minimum Threshold compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Mark Spencer, Senior Principal, President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $400,000 per fiscal year for basic services rendered under Section 1, as more particularly described in authorized Task Orders, in accordance with the terms and conditions included therein.
CONSULTANT may submit monthly statements for services rendered; all statements shall include adequate documentation demonstrating work performed during the billing period and shall conform to Federal Funding invoicing requirements, if applicable. It is intended that payments to CONSULTANT will be made by CITY within 45 (forty-five) days of receipt of invoice. Consultant’s failure to secure CITY’s written authorization for additional compensation or changes to the Scope of Work shall constitute a waiver of any and all right to adjustment in the price or time due, whether by way of compensation, restitution, quantum meruit, or similar relief.
4. INDEMNIFICATION.
A. For Design Professional Services Only. Pursuant to California Civil Code Section 2782.8, CONSULTANT agrees to indemnify the CITY (including its officers, officials, agents, employees and volunteers) against liability for claims against the CITY that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of this Agreement. The CONSULTANT will reimburse the CITY for any expenditures, including reasonable attorney fees, incurred by the CITY in defending against claims ultimately determined to arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
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B. For All Other Services. CONSULTANT agrees to defend, indemnify and hold harmless the CITY (including its officers, officials, employees, agents and volunteers) from and against any and all claims, demands, actions, losses, damages, injuries, and liability (including all attorney's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This indemnification obligation on CONSULTANT’S part shall not apply to demands, actions, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
5. OWNERSHIP AND MAINTENANCE OF DOCUMENTS.
All documents furnished by CONSULTANT pursuant to this AGREEMENT are instruments of CONSULTANT’s services in respect to this project. They are not intended nor represented to be suitable for reuse by others on extensions of this project or on any other project. Any reuse without specific written verification and adoption by CONSULTANT for the specific purposes intended will be at user’s sole risk and without liability or legal exposure and expenses to CONSULTANT, including attorney’s fees arising out of such unauthorized reuse.
CONSULTANT’s records, documents, calculations, and all other instruments of service pertaining to actual project shall be given to CITY at the completion of the project. The CITY reserves the right to specify the file format that electronic document deliverables are presented to the CITY. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the CONSULTANT under the Agreement shall be vested in the CITY, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the CITY. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the CITY without restriction or limitations on their use.
CONSULTANT may retain copies of the above-described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of CITY during the term of this Agreement, unless required by law.
6. STANDARD OF PERFORMANCE.
CONSULTANT represents to CITY that the services shall be performed in an expeditious manner, and with the degree of skill and care that is required by current, good, and sound procedures and practices. CONSULTANT further agrees that the services shall be in conformance with generally accepted
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professional standards prevailing at the time work is performed.
7. INSURANCE REQUIRED.
CONSULTANT agrees to have and maintain the policies set forth in Exhibit A entitled “INSURANCE REQUIREMENTS,” which is attached hereto and incorporated herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Attorney as to form and content and shall be provided no later than thirty (30) calendar days following the execution of this Agreement by both parties. These requirements are subject to amendment or waiver only if so approved in writing by the CITY. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. The insurance contemplated under this provision shall remain in full force and effect during the term of this Agreement.
8. SUSPENSION OF WORK.
CITY may, at any time, by written notice, suspend further performance by CONSULTANT, and CONSULTANT shall immediately cease performance. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner, and CONSULTANT shall be paid for services performed and reimbursable expenses incurred prior to the suspension date. During the period of suspension, CONSULTANT shall not receive any payment for services.
9. TERMINATION.
CITY may terminate this Agreement for any reason upon ten (10) days written notice to the other party. CITY may terminate the Agreement upon five (5) days written notice if CONSULTANT breaches this Agreement. In the event of any termination, CONSULTANT shall promptly deliver to the CITY any and all finished and unfinished reports or other written, recorded, photographic, or visual materials, documents, data, and other deliverables (“Work Materials”) prepared for the CITY prior to the effective date of such termination, all of which shall become CITY’s sole property. After receipt of the Work Materials, CITY will pay CONSULTANT for the services satisfactorily performed as of the effective date of the termination.
10. COMPLIANCE WITH CIVIL RIGHTS.
During the performance of this contract, CONSULTANT agrees as follows:
A. Equal Employment Opportunity. In connection with the execution of this AGREEMENT, CONSULTANT shall not discriminate against any employee or applicant for employment on
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the basis of any protected class pursuant to California law. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
C. Solicitations for Subcontractors including Procurement of Materials and Equipment. In all solicitation, either by competitive bidding or negotiations, made by CONSULTANT for work to be performed under a subcontract including procurement of materials or leases of equipment, each potential subcontractor, supplier or lessor shall be notified by CONSULTANT of CONSULTANT’S obligation under this AGREEMENT and the regulations relative to nondiscrimination on the basis of any protected class pursuant to California law.
11. CONFLICT OF INTEREST.
A. CONSULTANT covenants and represents that neither it, nor any officer or principal of its firm, has, or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT’s performance of services under this Agreement. CONSULTANT further covenants that in the performance of the Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the CITY. CONSULTANT agrees to at all times avoid conflicts of interest, or the appearance of any conflicts of interest, with the interests of the CITY in the performance of this Agreement.
B. CONSULTANT is not a designated employee within the meaning of the Political Reform Act because CONSULTANT:
(1) Will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation or counsel independent of the control and direction of the CITY or of any CITY official, other than normal contract monitoring; and (2) Possesses no authority with respect to any CITY decision beyond the rendition of information, advice, recommendation or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
12. INDEPENDENT CONTRACTOR.
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In assuming and performing the services, CONSULTANT is an independent contractor and shall not be eligible for any benefits, which the CITY may provide its employees, except as expressly provided for in the AGREEMENT. All persons, if any, hired by CONSULTANT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT shall have responsibility for and control over the means of providing services under this AGREEMENT.
13. COMPLIANCE WITH LAWS.
CONSULTANT shall comply with all applicable federal, State of California, and local laws, rules, and regulations and shall obtain all applicable licenses and permits for the conduct of its business and the performance of the services.
14. CHOICE OF LAW.
This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction.
In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Contra Costa, California.
15. NON-WAIVER.
The waiver by either party of any breach of any term, covenant, or condition contained in the AGREEMENT, or any default in their performance of any obligations under the AGREEMENT shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition, or obligation, nor shall any waiver of any incident of breach of default constitute a continuing waiver of same.
16. ENFORCEABILITY; INTERPRETATION.
In the event that any of the provisions or portions of application of any of the provisions of the AGREEMENT are held to be illegal or invalid by a court of competent jurisdiction, CITY and CONSULTANT shall negotiate an equitable adjustment in the provisions of the AGREEMENT with a view toward affecting the purpose of the AGREEMENT. The illegality or invalidity of any of the provisions or portions of application of any of the provisions of the AGREEMENT shall not affect the legality or enforceability of the remaining provisions or portions of application of any of the provisions of the AGREEMENT. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a
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party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted.
17. INTEGRATION.
The AGREEMENT contains the entire AGREEMENT and understanding between the parties as to the subject matter of this AGREEMENT. It merges and supersedes all prior or contemporaneous agreements, commitments, representation, writings, and discussions between CONSULTANT and CITY, whether oral or written.
18. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES; NO JOINT VENTURE.
CITY and CONSULTANT respectively, bind themselves, their successors, assigns, and legal representatives to the terms and obligations of this Agreement. CONSULTANT shall not assign or transfer any interest in the Agreement without the CITY's prior written consent, which consent shall be in the CITY’s sole discretion. Any attempted assignment or transfer in breach of this provision shall be void. This Agreement is not intended and shall not be construed to create any third party benefit. This Agreement is not intended and shall not be construed to create a joint venture or partnership between the parties. CONSULTANT, its officers, employees and agents shall not have any power to bind or commit the CITY to any decision.
19. FINANCIAL RECORDS.
Records of CONSULTANT’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this AGREEMENT will be kept on a generally recognized accounting basis and made available to CITY if and when required.
20. NOTICES.
All notices required hereunder shall be in writing and mailed postage prepaid by Certified or Registered mail, return receipt requested, or by personal delivery to the CITY's address as shown below, or such other places as CITY or CONSULTANT may, from time to time, respectively, designate in a written notice given to the other. Notice shall be deemed received three (3) days after the date of the mailing thereof or upon personal delivery.
To CITY Abhishek Parikh, Deputy Director
Department of Public Works
City of Concord
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1455 Gasoline Alley
Concord, CA 94520
Phone: 925-671-3139
Email: [email protected]
To CONSULTANT Mark Spencer, Senior Principal, President W-Trans
414 13th St. Fifth Floor
Oakland, CA 94612
Phone: 510-444-2600
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2028, with the option of one one-year extension upon mutual agreement by both CITY and CONSULTANT. The City Manager is authorized to approve the extension.
22. NON-LIABILITY.
No member of the CITY and no other officer, official, agent, employee or volunteer of the CITY shall be personally liable to CONSULTANT or otherwise in the event of any default or breach of the CITY, or for any amount which may become due to CONSULTANT or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement.
23. EXECUTION.
Each individual or entity executing this Agreement on behalf of CONSULTANT represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf of CONSULTANT and that such execution is binding upon CONSULTANT.
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date and year first written above.
CONSULTANT CITY OF CONCORD
By:_________________________________ By:______________________________ APPROVED AS TO FORM: ATTEST:
Susanne Meyer Brown Joelle Fockler, MMC
City Attorney City Clerk
Date:
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date:
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/24 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $400,000 PER FISCAL YEAR. Account Code 5310-100-63800-500.
Finance Director's Signature
Name: Mark Spencer Name: Valerie Barone
Title: Senior Principal, President Title: City Manager
Address: 414 13th St. Fifth Floor Address: 1950 Parkside Drive, MS 01 Oakland, CA 94612 Concord, CA 94519
Telephone: 510-444-2600
Email: [email protected]
Telephone: (925) 671-3175
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EXHIBIT “A”
CONSULTANT shall procure and maintain for the duration of the contract insurance against claims from injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by CONSULTANT, their agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
1. Commercial General Liability Policy. CONSULTANT shall maintain during the term of this Agreement a commercial general liability insurance policy providing coverage of at least one million ($1,000,000) combined single limit per occurrence or two million ($2,000,000) aggregate limit for bodily injury, personal injury and property damage. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers. CONSULTANT’s insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
2. Automobile Liability Coverage. CONSULTANT shall maintain automobile liability insurance covering all vehicles used in the performance of this Agreement providing a one million dollar ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
3. Professional Liability Coverage (Errors and Omissions). CONSULTANT shall maintain professional liability insurance with coverage for all negligent errors, acts or omissions committed by CONSULTANT, its agents and employees in the performance of this Agreement. The amount of this insurance shall be not less than one million dollars ($1,000,000) on a claims made annual aggregate basis or a combined single limit per occurrence basis.
4. Workers Compensation. CONSULTANT covenants that it will insure itself against liability for Workers' Compensation pursuant to the provisions of California Labor Code §3700, et seq.
CONSULTANT shall, at all times, upon demand of the CITY, furnish proof that Workers' Compensation Insurance is being maintained by it in force and effect in accordance with the California Labor Code. The insurer shall also agree to waive all rights of subrogation against the CITY, its officers, officials, agents, employees and volunteers for losses arising from work performed under this Agreement. This provision shall not apply upon written verification by CONSULTANT that CONSULTANT has no employees.
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If CONSULTANT maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by CONSULTANT. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.
The policies are to contain, or be endorsed to contain the following provisions:
1. Additional Insured. CITY, its officers, officials, agents, employees, and volunteers are to be covered as an additional insured as respects: Liability arising out of activities performed by or on behalf of CONSULTANT and operations of CONSULTANT, premises owned, occupied, or used by CONSULTANT. The coverage shall contain no special limitations on the scope or protection afforded to CITY, its officers, officials, agents, employees, or volunteers.
Except for worker's compensation and professional liability insurance, the policies mentioned in this subsection shall name CITY as an additional insured and provide for notice of cancellation to CITY. CONSULTANT shall also provide timely and prompt notice to CITY if CONSULTANT receives any notice of cancellation or nonrenewal from its insurer.
2. Primary Coverage. CONSULTANT'S insurance coverage shall be primary insurance with respect to CITY, its officers, officials, agents, employees, and volunteers. Any insurance, risk pooling arrangement, or self-insurance maintained by CITY, its officers, officials, agents, employees, or volunteers shall be in excess of CONSULTANT'S insurance and shall not contribute with it.
3. Reporting Provisions. Any failure to comply with the reporting provisions of the policy shall not affect the coverage provided to the CITY, its officers, officials, agents, employees, or volunteers.
4. Verification of Coverage. CONSULTANT shall furnish CITY with certificates of insurance and the original endorsements effecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The aforementioned policies shall be issued by an insurance carrier having a rating of Best A-7 or better which is satisfactory to the City Attorney and shall be delivered to CITY at the time of the execution of this Agreement or before work commences. Such policies and certificates shall be in a form approved by the City Attorney. CITY reserves the right to require complete certified copies of all required insurance policies at any time.
5. Inclusion in Subcontracts. To the extent any of the services required of CONSULTANT under this Agreement are subcontracted to a third party. CONSULTANT shall include all of the provisions of this Section in all such subcontracts as obligations of the subcontractor.
Staff Report
Date: June 27, 2023
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: Kevin Marstall, PE, Director of Community Development Carlton Thompson, PE, City Engineer
Bernard Enrile, PE, CIP Manager
Prepared by: Tianjun Cao, PE, Associate Civil Engineer
[email protected]
(925) 671-3243
Subject: Considering acceptance of improvements for the Citywide Accessibility Improvements No. 9 (Project No. 2602) located at various locations on David Avenue, Thames Drive, Hookston Road, Hampton Drive, Stimel Drive, Bermuda Drive, and Grant Street; and directing the City Clerk to file a Notice of Completion.
Report in Brief
Rosas Brothers Construction of Oakland, CA has completed all work associated with the Citywide Accessibility Improvements No. 9 (Project No. 2602) and has provided the required one-year construction warranty bond.
The project improvements included constructing thirty-one (31) Americans with Disabilities Act (ADA) compliant curb ramps, striping, and minimal paving work. The work took place on Hookston Road, Hampton Drive, Thames Drive, Stimel Drive, Bermuda Drive, David Avenue, and Grant Street at Adobe Drive, see Location Map (Attachment 1).
Recommended Action
Accept the improvements for Citywide Accessibility Improvements No. 9 (Project No. 2602); and direct the City Clerk to file a Notice of Completion (Attachment 2).
5.c
City Council Agenda Report
Agenda Item No. 5.c
June 27, 2023
Background
On December 6, 2022, the City Council awarded the Citywide Accessibility Improvements No. 9 (Project No. 2602) construction contract to Rosas Brothers Construction (Rosas Brothers) of Oakland, CA in the amount of $253,362. Construction for Project No. 2602 began on February 6, 2023.
The scope of the project included constructing thirty-one (31) ADA compliant curb ramps, striping, and minimal paving work. The project is located within various locations around the City, which included Hookston Road, Hampton Drive, Thames Drive, Stimel Drive, Bermuda Drive, David Avenue, and Grant Street at Adobe Drive.
Construction for Project No. 2602 was completed within the allotted budget and working days.
Analysis
Rosas Brothers has completed all improvements for Citywide Accessibility Improvements No. 9 (Project No. 2602) and staff has inspected the work, which is in compliance with the project plans and specifications. Rosas Brothers has provided the required 10% warranty bond, which guarantees the work from material and workmanship defects for one (1) year.
Financial Impact
The construction contract was completed in the total amount of $277,800, which is within the original construction contract, with 10% contingency, amount of $278,698.
The project was funded by Community Development Block Grant (CDBG) (Fund 254) and Measure V funds (Fund 401 and 407).
Public Contact
The City Council Agenda was posted.
Attachments
1. Location Maps
2. Notice of Completion
Attachment 1
Location Maps
Citywide Accessibility Improvements No. 9 (Project 2602) - Ramp upgrade locations
Attachment 1
Attachment 1
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
City Clerk
City of Concord
1950 Parkside Drive MS/03
Concord, CA 94519
APN(s): __ _n/a
(Space Above This Line for Recorder’s Use Only)
[Exempt from recording fee per Gov. Code § 27383]
NOTICE OF COMPLETION
(Cal. Civ. Code §§ 8180-8190, 8100-8118, 9200-9208)
A. The City of Concord, a California municipal corporation, entered into a written contract with Rosas Brothers Construction (Contractor) dated December 6, 2022. The surety on said contract is held by Western Surety Company, 8880 Cal Center Dr. #410, Sacramento, CA, 95826.
B. NOTICE IS HEREBY GIVEN THAT:
(1) The name and address of the owner or reputed owner are:
City of Concord, 1950 Parkside Drive, Concord, CA 94519-2578 (2) The name and address of the direct contractor are:
Rosas Brothers Construction, 4731 Coliseum Way, Oakland, CA 94601, (3) The name and address of the construction lender, if any, are:
Not applicable
(4) A description of the site sufficient for identification, including the street address of the site, if any, follows:
The real property herein referred to is situated in the City of Concord, County of Contra Costa, State of California, and is described as follows: Grant St at Adobe Dr, David Avenue, Thames Dr, Hampton Dr, Hookston Rd, Bermuda Drive, and Stimel Dr.
(5) The name, address, and relationship to the parties of the person giving the notice:
City of Concord, a California Municipal Corporation, 1950 Parkside Drive, Concord, CA 94519; person giving notice and owner.
(6) The person giving this notice is not a claimant
(7) This notice is given for (check one):
X Completion of the work of improvement as a whole.
___ Completion of a contract for a particular portion of the work of improvement. If the notice is given only of completion of a contract for a particular portion of the work of improvement as provided in California Civil Code Section 8186, provide the following information:
(a) The name and address of the direct contractor under that contract: See item B(2), above. (b) A general statement of the work provided pursuant to the contract: See item A above. (8) If signed by the owner’s successor in interest, the name and address of the successor’s transferor:
Not applicable
(9) The nature of the interest or estate of the owner: Easement (10) The date of completion: June 27, 2023
I, Carlton Thompson, PE, say I am the City Engineer for the City of Concord, owner of the aforesaid interest or estate in the property described in the above Notice of Completion, and as such, make this verification on behalf of City of Concord; and that I have read the above Notice of Completion and know the contents thereof and that the facts stated therein are true of my own knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on ___________________________, 20____, at
Concord, California
______________________________________
Carlton Thompson, PE, City Engineer (Signature)
ATTEST:
______________________________________
Joelle Fockler, MMC
City of Concord City Clerk
Attachment 2
Staff Report
Date: June 27, 2023
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: Kevin Marstall, PE, Director of Community Development Carlton Thompson, PE, City Engineer
Bernard Enrile, PE, CIP Manager
Prepared by: Kevin Wheat, PE, Associate Civil Engineer
[email protected]
(925) 671-3422
Subject: Considering the following:
1. Approval of Amendment No. 2 to the Professional Services Agreement (PSA) with UNICO Engineering, adding $43,189.73 to their existing contract creating a new not-to-exceed amount of $389,200.68, to provide additional construction management and inspection services to complete the Hillcrest Park
Regional Green Infrastructure Project (City Project No. 2512); authorizing any necessary appropriations to the extent not previously addressed; and authorizing the City Manager to execute the amendment in a form acceptable to the City
Attorney. (Funding from within the existing project – Project Number 2512).
CEQA: The Notice of Exemption for this project was previously filed with the County Clerk’s office following the Council award of the construction contract.
Report in Brief
The Hillcrest Park Regional Green Infrastructure Project (City Project No. 2512) has experienced delays as previously reported due to PG&E’s gas main relocation taking two months longer than initially anticipated. PG&E completed their work on Friday June 2 nd. The only work currently remaining in the project are irrigation repairs related to new valves installed that are currently not functioning properly, punch list items such as
5.d
City Council Agenda Report
Agenda Item No. 5.d
June 27, 2023
repairing chipped or damaged concrete, and the last of the two large trash capture devices to be installed on Olivera Road just east of the Arnold Industrial Place intersection. The other trash capture device off of Grant Street at the east end of the park was fully completed at the end of May.
UNICO Engineering, the consultant providing construction management and inspection services for the project, does not have enough budget to provide full time inspection coverage and material testing. These services are still required for the final trash capture device installation previously mentioned, and to assist the City in resolving punch list items within the park to close out the project. As a result, City staff (Staff) recommends amending UNICO’s existing Professional Services Agreement (PSA) authorizing an additional $43,189.73 to provide construction management, inspection, and material testing for the remainder of the project.
No additional funds are being added to the project. A fraction of the construction contingency previously authorized for Ghilotti Bros Inc.’s construction contract is no longer needed and can be authorized for use towards this PSA Amendment with UNICO.
Recommended Action
1. Approve Amendment No. 2 to the Professional Services Agreement (PSA) with UNICO Engineering, adding $43,189.73 to their existing contract creating a new not-to-exceed amount of $389,200.68, to provide additional construction management and inspection services to complete the Hillcrest Park Regional Green Infrastructure Project (City Project No. 2512); authorize any necessary appropriations to the extent not previously addressed; and authorize the City Manager to execute the amendment in a form acceptable to the City Attorney.
Background
On June 14, 2022, City Council (Council) awarded a construction contract in the amount $3,842,741.50 to Ghilotti Bros., Inc. for the Hillcrest Park Regional Green Infrastructure Project (Project No. 2512); including authorizing Staff to utilize the available project contingency for contract change orders up to 5% of the contract amount ($192,137.08).
Council also approved a Professional Services Agreement with UNICO Engineering in the not-to-exceed amount of $315,828.54 (base agreement of $300,789.09 plus staff authority to spend up to a 5% contingency of $15,039.45) to provide construction management, inspection, and materials testing services for the Hillcrest Park Regional Green Infrastructure Project (Project No. 2512).
City Council Agenda Report
Agenda Item No. 5.d
June 27, 2023
On March 28, 2023, Council authorized Staff to:
1. Utilize up to 12% contingency (increase from 5% contingency of $192,137.08 to 12% contingency of $461,128.98) on the existing construction contract with Ghilotti Bros, Inc. for contract change orders that become necessary to complete the project.
2. Utilize up to 15% contingency (increase from 5% contingency of $15,039.45 to 15% contingency of $45,131.87) on the existing Professional Services Agreement (PSA) with UNICO Engineering, to provide additional construction management and inspection services to complete the project. This first PSA amendment created a new not-to-exceed amount of $346,010.96.
Analysis
PG&E’s gas line relocation on Olivera Road near the intersection of Arnold Industrial Place was expected to be complete by the end of April. Total Project completion was previously estimated to be June 2023. Because of PG&E’s two-month delay, project completion is now expected by August this year.
Staff conservatively estimated the amount of construction contract contingency needed for contract change orders with Ghilotti Bros, Inc.’s contract to complete the remaining work. Now that most of the work in the project is complete and a large amount of Ghilotti Bros Inc.’s 12% contingency still remains, some of those funds ($43,189.73) can be authorized for use towards UNICO’s PSA Amendment to provide the City full time inspection and material testing on the final underground trash capture device near the Olivera Road/Arnold Industrial Place intersection, and assist the City in getting several punch list items within the park resolved related to irrigation.
Financial Impact
There are no changes to the project budget. The current total budget for this project is $6,099,080.08 (includes $5,100,000 from Caltrans via Fund 402, and other smaller amounts from Funds 400, 401, and Storm Drain Fund 270).
Environmental Determination
Pursuant to CEQA Guidelines Sections 15060 (c), 15061 (b)(3), 15273, 15378, and Public Resources Code Section 21065, award or amendment of this contract is not subject to environmental review under the California Environmental Quality Act (CEQA) of 1970, as amended, as it will not result in a direct or reasonably foreseeable indirect physical change in the environment. The Notice of Exemption for this project was previously filed with the County Clerk’s office following the Council award of the construction contract.
Public Contact
The City Council Agenda was posted.
City Council Agenda Report
Agenda Item No. 5.d
June 27, 2023
Attachments
1. Project Location Map
2. Second Amendment to Professional Services Agreement with UNICO, with Exhibits A – C
Attachment 1
Project Location Map
Hillcrest Community Park – Regional Green Infrastructure – PJ 2512 SITE
SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
5956-A 1
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This Second Amendment to Professional Services Agreement (“Second Amendment”) is entered into on this date, June 27, 2023, and amends the Professional Services Agreement, Agreement No. 5956, between the City of Concord (“CITY”) and UNICO Engineering (“CONSULTANT”).
WHEREAS, the CITY and CONSULTANT entered into a Professional Services Agreement, Agreement No. 5956 dated June 14, 2022 (the “Agreement”), wherein CONSULTANT agreed to provide construction management and inspection services for Hillcrest Park Regional Green Infrastructure, Project No. 2512.
WHEREAS, under Section 1 “TERM” the Agreement provides that the Agreement shall expire on June 30, 2023.
WHEREAS, under Section 3 “PAYMENT” the Agreement provides that the compensation to be paid to CONSULTANT including payment for extended construction duration, delays due to PG&E gas main relocation, and inclement weather shall be at the rate and schedules in detail in Exhibit B.
However, in no event shall the amount CITY pays CONSULTANT exceed three-hundred fifteen thousand, nine hundred twenty-three dollars, and four cents ($315,923.04).
WHEREAS, the Parties executed a First Amendment to the Agreement on March 29, 2023, which extended the term of the Agreement to June 30, 2024 and increased the compensation to $346,010.96.
WHEREAS, under Section 5 “AMENDMENT TO AGREEMENT” the Agreement provides that Agreement may be amended by the parties subject to consent and in accordance with the CITY’S Municipal Code.
WHEREAS, the parties mutually desire to amend the Agreement to increase compensation.
NOW THEREFORE, in consideration of the promises and conditions set forth in the Agreement, the parties mutually desire to amend the Agreement as follows:
1. The first two sentences of Section 3 “PAYMENT” are hereby amended to read as follows: The compensation to be paid to CONSULTANT including payment for extended construction duration, delays due to PG&E gas main relocation, and inclement weather shall be at the rates and schedules described in Exhibit A, attached to the Agreement, Exhibit B, attached to the First Amendment, and Exhibit C, proposal Attachment 2
5956-A 2
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from CONSULTANT dated May 31, 2023, attached to this Second Amendment.
However, in no event shall the amount CITY pays CONSULTANT exceed three hundred eighty-nine thousand, two hundred dollars and sixty-eight cents ($389,200.68) for the term of this Agreement.
2. Except as expressly amended herein, all other terms and conditions of the Professional Services Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Second Amendment on the date indicated above.
Signatures on the following page.
5956-A 3
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Dated: ______________ UNICO Engineering
BY: ________________________
Cesar Montes, President
[email protected]
Dated: ________________ CITY OF CONCORD
By:______________________________
Valerie J. Barone
City Manager
APPROVED AS TO FORM: ATTEST:
____________________________ ____________________________________ Susanne Brown Joelle Fockler, MMC
City Attorney City Clerk
FINANCE DIRECTOR'S CERTIFICATION:
Concord, California
Date: ________________
I HEREBY CERTIFY THAT ADEQUATE FUNDS EXIST OR WILL BE RECEIVED DURING THE CURRENT FISCAL YEAR 2023/2024 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $43,189.73.
Account Code 4019500C999-74250 / 4012512117-74250.
Finance Director's Signature
110 Blue Ravine Rd – Suite 101
Folsom, CA 95630
916-900-6623
Carlos Melendez, PR
Resident Engineer
Pablo Romero
Office Engineer
Craig Lozano, Construction
Inspector
Craig Lozano, Construction
Inspector (OT)
Sam Seward
Electrical Inspector
Soils and Material Tester -
Group 1
Staff Engineer
Direct Labor Rate 89.00$ 33.09$ 65.00$ 97.50$ 65.00$ 54.02$ 67.31$ Overhead Rate
Fee
Bill Rate $230.32 $85.63 $168.21 $252.32 $168.21 $124.97 $155.71 Task # Task Description Total
1 Project Administration 288 340 0 0 0 0 0 $ 95,447.01
2 Field Engineering 0 0 820 0 80 0 0 $ 151,389.81
3 Material Testing 0 0 0 0 0 180 40 $ 28,723.00
4 Post Construction 48 80 32 0 0 0 0 $ 23,288.67
336 420 852 0 80 180 40 $ 298,848.48
$ 2,030.61
$ 300,879.09
Laboratory Testing and
Reports
TOTAL
City of Concord
Construction Management and Material Testing Services
for
Hillcrest Park Regional Green Infrastructure (Project No. 2512) Cost Proposal
Smith-Emery
116.22%
Other Direct Costs
UNICO ENGINEERING
135.26%
10% 7%
Hours
5/16/2022
110 Blue Ravine Rd – Suite 101
Folsom, CA 95630
916-900-6623
3/22/2023
Carlos Melendez, PR
Resident Engineer
Hsiang Huang
Office Engineer
Craig Lozano, Construction
Inspector
Craig Lozano, Construction
Inspector (OT)
Sam Seward
Electrical Inspector
Soils and Material Tester -
Group 1
Staff Engineer
Direct Labor Rate $ 89.00 $ 45.00 $ 65.00 $ 97.50 $ 65.00 $ 54.02 $ 67.31 Overhead Rate
Fee
Bill Rate $230.32 $116.45 $168.21 $252.32 $168.21 $124.97 $155.71 Task # Task Description Total
1 Project Administration 12 48 0 0 $ 8,353.61
2 Quality Assurance, Inspection, and Material
Testing 120 0 0 8 $ 21,185.07
3 Public and Community Relations $ -
4 Post Construction 0 0 $ -
12 48 120 0 0 8 0 $ 29,538.68
$ 549.24
$ 30,087.92
Other Direct Costs
TOTAL
City of Concord - UNICO Engineering
Construction Management and Material Testing Services
for
Hillcrest Park Regional Green Infrastructure (Project No. 2512) Cost Proposal - Amendment 1 (Utility Impact at West Trash Capture) Smith-Emery
116.22%
UNICO ENGINEERING
135.26%
10% 10%
Hours
Exhibit B to Attachment 2
Name Role 28-May 4-Jun 11-Jun 18-Jun 25-Jun 2-Jul 9-Jul 16-Jul 23-Jul 30-Jul Total
(Hrs)
Hrly Rate
($) Extended ($)
Carlos Melendez RE 4 4 4 4 4 4 4 4 32 $ 230.32 $ 7,370.23 Hsiang Huang OE 8 16 16 16 16 16 8 8 104 $ 85.63 $ 8,905.76 Construction Inspector CI 40 40 40 40 160 $ 168.21 $ 26,913.74 5 5 5 $ -
252 44 296
CM Total: $ 43,189.73
Name Role 28-May 4-Jun 11-Jun 18-Jun 25-Jun 2-Jul 9-Jul 16-Jul 23-Jul 30-Jul Total
(Hrs)
Hrly Rate
($) Extended ($)
Soils & Material Tester (Group 1) SM1 0 $ 124.97 $ -
Building Inspector (Group 2) BI2 0 $ 120.35 $ -
Building Inspector (Group 3) BI3 0 $ 103.67 $ -
Staff Engineer ENG 0 $ 155.72 $ -
5 5 5 $ -
0 Material Testing Labo 0 r : $ -
Materail Testing ODCs: $ -
Total Material Testing: $ -
Project Total: $ 43,189.73
Smith-Emery
Punchlist & Closeout
PL & CO:
UNICO
Punchlist & Closeout
PL & CO:
May 31, 2023
Exhibit C to Attachment 2
Staff Report
Date: June 27, 2023
To: City Council
From: Valerie J. Barone, City Manager
Reviewed by: Karan Reid, Director of Finance
Prepared by: Himmat Bains, Sr. Financial Analyst
[email protected]
(925) 671-3261
Subject: Considering approval of the FY 2023-24 City of Concord Investment Policy.
Report in Brief
Annually, the City Council reviews and updates the City’s Investment Policy to incorporate best practices and ensure compliance with the provisions of the California Government Code (Sections 53600-53610) governing investment of public funds.
Notably, there have been updates to these code sections since the last policy update on June 1, 2022, necessitating modifications to the policy. These proposed changes are in direct response to Senate Bill 1489, which became effective in September 2022. The Treasurer has examined these revisions, ensuring their suitability and compliance.
Recommended Action
Approve the City of Concord FY 2023-24 Investment Policy. (Attachment 1) Background
California Code (Sections 53600-53610) governs the investment of City funds.
Specifically, the Government Code prescribes the investment vehicles in which local agencies are permitted to invest available funds. Attachment 2 is a graphical representation of the Investment Universe and what is allowed according to California Government Code. The investment policy is updated each year to remain in compliance with code changes and industry best practices.
5.e