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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Rob Rees, Principal-in-Charge
Fehr & Peers
100 Pringle Avenue, Suite 600
Walnut Creek, Ca 94596
Phone: 925-980-4983
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
Fehr & Peers 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Rob Rees Name: Valerie Barone
Title: Principal-in-Charge Title: City Manager
Address: 100 Pringle Avenue, Suite 600 Address: 1950 Parkside Drive, MS 01 Walnut Creek, Ca 94596 Concord, CA 94519
Telephone:925-980-4983 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Fugro (hereinafter “CONSULTANT”), whose address is 5300 South Eastern Avenue, Suite 120, Commerce, Ca, 90040.
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:
• Geotechnical 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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Osman El Menchawi, Vice President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Osman El Menchawi, Vice President
Fugro
5300 South Eastern Avenue, Suite 120
Commerce, Ca 90040
Phone: 925-949-7142
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
Fugro 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Osman El Menchawi Name: Valerie Barone
Title: Vice President Title: City Manager
Address: 5300 South Eastern Avenue, Suite 120 Address: 1950 Parkside Drive, MS 01 Commerce, Ca 90040 Concord, CA 94519
Telephone:925-949-7142 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and GSM Landscape Architects, Inc. (hereinafter “CONSULTANT”), whose address is 1700 Soscol Avenue, Suite 23, Napa, Ca, 94558.
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:
• Design Services Landscaping
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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Gretchen Stranzl McCann, President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Gretchen Stranzl McCann, President
GSM Landscape Architects, Inc.
1700 Soscol Avenue, Suite 23
Napa, Ca 94558
Phone: 707-888-5364
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
GSM Landscape Architects, Inc. 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Gretchen Stranzl McCann Name: Valerie Barone
Title: President Title: City Manager
Address: 1700 Soscol Avenue, Suite 23 Address: 1950 Parkside Drive, MS 01 Napa, Ca 94558 Concord, CA 94519
Telephone:707-888-5364 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Guttmann & Blaevoet Consulting Engineers (hereinafter “CONSULTANT”), whose address is 1620 Montgomery Street, Suite 230, San Francisco, Ca, 94111.
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:
• Design Services Mechanical
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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Margarita Gorokhovsky, President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Margarita Gorokhovsky, President
Guttmann & Blaevoet Consulting Engineers
1620 Montgomery Street, Suite 230
San Francisco, Ca 94111
Phone: 415-655-4052
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
Guttmann & Blaevoet Consulting Engineers 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Margarita Gorokhovsky Name: Valerie Barone
Title: President Title: City Manager
Address: 1620 Montgomery Street, Suite 230 Address: 1950 Parkside Drive, MS 01 San Francisco, Ca 94111 Concord, CA 94519
Telephone:415-655-4052 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Haley & Aldrich, Inc. (hereinafter “CONSULTANT”), whose address is 785 Ygnacio Valley Road, 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:
• Development Plan Review Services
• Geotechnical 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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Scott Alman, Principal.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Scott Alman, Principal
Haley & Aldrich, Inc.
785 Ygnacio Valley Road
Walnut Creek, Ca 94596
Phone: 925-433-2321
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
Haley & Aldrich, Inc. 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Scott Alman Name: Valerie Barone
Title: Principal Title: City Manager
Address: 785 Ygnacio Valley Road Address: 1950 Parkside Drive, MS 01 Walnut Creek, Ca 94596 Concord, CA 94519
Telephone:925-433-2321 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, thei r 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.
Development Plan Review
Geotechnical Services
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and IDA Structural Engineers, Inc. (hereinafter “CONSULTANT”), whose address is 1629 Telegraph Avenue, Suite 300, 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:
• Design Services Structural
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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Elliott Goodwin, IDA Principal.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Elliott Goodwin, IDA Principal
IDA Structural Engineers, Inc.
1629 Telegraph Avenue, Suite 300
Oakland, Ca 94612
Phone: 510-834-1629 ext 105
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
IDA Structural Engineers, Inc. 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Elliott Goodwin Name: Valerie Barone
Title: IDA Principal Title: City Manager
Address: 1629 Telegraph Avenue, Suite 300 Address: 1950 Parkside Drive, MS 01 Oakland, Ca 94612 Concord, CA 94519
Telephone:510-834-1629 ext 105 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, thei r 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.
Oakland | Portland | ida-se.com
Billing Rates
____________________________________________________________________
Effective September 2022 Billing Period
Principal $230.00 - $265.00 per hour
Principal Civil Engineer $185.00 per hour
Associate / Structural Engineer $210.00 per hour
Senior Structural Engineer $200.00 per hour
Structural Engineer $160.00 - $190.00 per hour
Civil Engineer $135.00 - $175.00 per hour
Structural Designer II $150.00 per hour
Structural Designer I $135.00 per hour
BIM Manager $135.00 - $145.00 per hour
Revit Modeler II $125.00 per hour
Revit Modeler I $100.00 per hour
Administrative Staff $75.00 - $110.00 per hour
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
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THIS AGREEMENT made and entered into on July 1, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Interactive Resources, Inc. (hereinafter “CONSULTANT”), whose address is 117 Park Place , Richmond, Ca, 94801.
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:
• Design Services Architecture
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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Andrew Butt, Managing Principal.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Andrew Butt, Managing Principal
Interactive Resources, Inc.
117 Park Place
Richmond, Ca 94801
Phone: 510-231-7507
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
Interactive Resources, Inc. 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Andrew Butt Name: Valerie Barone
Title: Managing Principal Title: City Manager
Address: 117 Park Place Address: 1950 Parkside Drive, MS 01 Richmond, Ca 94801 Concord, CA 94519
Telephone:510-231-7507 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and JMEC Engineering, Inc. (hereinafter “CONSULTANT”), whose address is 165 Lennon Lane, Suite 106, Walnut Creek, Ca, 94598.
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:
• Design Services Structural
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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Esmond Chan, President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Esmond Chan, President
JMEC Engineering, Inc.
165 Lennon Lane, Suite 106
Walnut Creek, Ca 94598
Phone: 925-944-8999
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
JMEC Engineering, Inc. 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Esmond Chan Name: Valerie Barone
Title: President Title: City Manager
Address: 165 Lennon Lane, Suite 106 Address: 1950 Parkside Drive, MS 01 Walnut Creek, Ca 94598 Concord, CA 94519
Telephone:925-944-8999 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Kennedy & Associates, Inc. (hereinafter “CONSULTANT”), whose address is 2586 Comistas Drive, Walnut Creek, Ca, 94598.
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:
• Development Plan Review 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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Frank Kennedy, President.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Frank Kennedy, President
Kennedy & Associates, Inc.
2586 Comistas Drive
Walnut Creek, Ca 94598
Phone: 925-932-7857
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
Kennedy & Associates, Inc. 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Frank Kennedy Name: Valerie Barone
Title: President Title: City Manager
Address: 2586 Comistas Drive Address: 1950 Parkside Drive, MS 01 Walnut Creek, Ca 94598 Concord, CA 94519
Telephone:925-932-7857 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and Kleinfelder, Inc. (hereinafter “CONSULTANT”), whose address is 2280 Market Street, Suite 300, Riverside, Ca, 92501.
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:
• Geotechnical Services
• Materials Testing 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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Jo-Ann Hidalgo , Business Development Specialist.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This
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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 p roject. 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.
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,
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT
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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 s ame 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,
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Jo-Ann Hidalgo, Business Development Specialist Kleinfelder, Inc.
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2280 Market Street, Suite 300
Riverside, Ca 92501
Phone: 951-801-3702
Email: [email protected]
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
Kleinfelder, Inc. 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Jo-Ann Hidalgo Name: Valerie Barone
Title: Business Development Specialist Title: City Manager Address: 2280 Market Street, Suite 300 Address: 1950 Parkside Drive, MS 01 Riverside, Ca 92501 Concord, CA 94519
Telephone:951-801-3702 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and KSH Architects (hereinafter “CONSULTANT”), whose address is 349 Sutter Street , San Francisco, Ca, 94108.
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:
• Interior Design 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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Amanda Borden, Principal.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey'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, action s, losses, damages, injuries, and liability arising out of sole negligence or willful misconduct on the part of CITY.
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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 p roject. 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.
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
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
B. Nondiscrimination Civil Rights Act of 1964. CONSULTANT will comply with all federal regulations relative to nondiscrimination in federally assisted programs.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT 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.
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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 s ame 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.
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Amanda Borden, Principal
KSH Architects
349 Sutter Street
San Francisco, Ca 94108
Phone: 415-847-9193
Email: [email protected]
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21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
KSH Architects 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Amanda Borden Name: Valerie Barone
Title: Principal Title: City Manager
Address: 349 Sutter Street Address: 1950 Parkside Drive, MS 01 San Francisco, Ca 94108 Concord, CA 94519
Telephone:415-847-9193 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, thei r 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, 2024 by and between the City of Concord , a California municipal corporation, (hereinafter "CITY"), located in the County of Contra Costa, State of California, and LCA Architects (hereinafter “CONSULTANT”), whose address is 590 Ygnacio Valley Road, Suite 310, 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:
• Design Services Architecture
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 the City Engineer. Said representative is authorized to execute Task Orders on behalf of CITY, including providing for CONSULTANT to be compensated not more than $200,000.00 for each project. Task Orders
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providing for more than $200,000.00 compensation for one project shall be presented to the City Council for its consideration and approval.
CONSULTANT authorized representative shall be Carl E. Campos Shabnam Gruenholz, Chief Executive Officer.
3. COMPENSATION.
CONSULTANT shall be compensated, not to exceed $300,000.00 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 o f 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, demands, actions, losses, damages, injuries, and liability (including all attorn ey's fees and other litigation expenses) arising out of the CONSULTANT’s performance under the terms of this Agreement. This
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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 p roject. 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.
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,
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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, CONSULTA NT 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 s hall 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 traini ng including apprenticeship.
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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 CON SULTANT’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 w ritten 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 CONSULTA NT shall be employees or subcontractors of CONSULTANT and shall not be construed as employees or agents of the CITY in any respect. CONSULTANT
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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 s ame 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,
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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 c onsent, 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 i s 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 Carlton Thompson, City Engineer
Community Development Department
City of Concord
1950 Parkside Drive
Concord, CA 94519
Phone: 925-6713182
Email: [email protected]
To CONSULTANT Carl E. Campos
Shabnam Gruenholz, Chief Executive Officer
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LCA Architects
590 Ygnacio Valley Road, Suite 310
Walnut Creek, Ca 94596
Phone: 925-944-2711
Email: [email protected]
[email protected];
21. TERM.
The term of this AGREEMENT shall be from the date executed above through June 30, 2026, 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 Agr eement, 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 in three (3) copies as of the date and year first written above.
LCA Architects 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 24/25 TO PAY THE ANTICIPATED EXPENSES TO BE INCURRED PURSUANT TO THIS CONTRACT.
THE SUM OF $300,000.00. Account Code .
Finance Director's Signature
Name: Carl E. Campos
Shabnam Gruenholz
Name: Valerie Barone
Title: Chief Executive Officer Title: City Manager
Address: 590 Ygnacio Valley Road, Suite 310 Address: 1950 Parkside Drive, MS 01 Walnut Creek, Ca 94596 Concord, CA 94519
Telephone:925-944-2711 Telephone: (925) 671-3175