PROFESSIONAL SERVICES AGREEMENT FOR PRELIMINARY ENGINEERING
AND DESIGN SERVICES FOR THE CORONADO GATEWAY PROJECT
24-PS-EN-11-5090F15
This AGREEMENT is made and entered into as of the date of execution by the City of Coronado, a municipal corporation, hereinafter referred to as “CITY” and Wood Rodgers, Inc., a California corporation, hereinafter referred to as “CONSULTANT.” Where the contracting entity is a joint venture such entity is encompassed within the meaning of the term “CONSULTANT.”
RECITALS
The CITY requires the services of a CONSULTANT for professional engineering and design services. These services generally consist of Preliminary Engineering (PE), Plans, Specifications and Estimate (PS&E) Reviews, and Right of Way (ROW) activities for the Coronado Gateway PROJECT. The work to be performed by CONSULTANT shall be referred to herein as the “DESCRIBED SERVICES.”
CONSULTANT represents itself as being a professional engineering services and design firm, possessing the necessary licensure, experience, skills, and qualifications to provide the services required by the CITY. CONSULTANT warrants and represents that it has the necessary staff to deliver the services within the time frame herein specified.
On February 20, 2024, the City Council for the CITY approved this AGREEMENT and authorized the City Manager to execute the form of this Agreement.
The CITY MANAGER shall serve as the CITY’s “CONTRACT OFFICER” for this AGREEMENT. The Contract Officer has the authority to direct the CONSULTANT, approve actions, request changes, and approve additional services. The Director of Public Services & Engineering shall serve as the PROJECT MANAGER; the Administration Supervisor/Manager shall serve as the Contract Administrator.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CITY and CONSULTANT (collectively referred to as the “PARTIES”) agree as follows:
1.0 TERM OF THE AGREEMENT (PERFORMANCE PERIOD)
1.1 This AGREEMENT shall be effective beginning the day, month and year of the execution of this document by the CITY. The AGREEMENT shall be in effect for a term of two years. The CITY shall have the option to extend the AGREEMENT, if agreed to by the CONSULTANT.
1.2 The CONSULTANT shall commence the performance of the DESCRIBED SERVICES immediately upon execution of this AGREEMENT. Time is of the essence in this AGREEMENT. Failure to meet the schedule contained in this AGREEMENT is a default by the CONSULTANT.
Attachment 1
2 1.3 A delay occasioned by causes beyond the control of CONSULTANT may merit an extension of time for the completion of the DESCRIBED SERVICES. When such delay occurs, CONSULTANT shall immediately notify the CONTRACT OFFICER in writing of the cause and the extent of the delay, whereupon the CONTRACT OFFICER shall ascertain the facts and the extent of the delay and may grant an extension of time for the completion of the DESCRIBED SERVICES when justified by the circumstances. CONSULTANT acknowledges and agrees that delays arising out of or related to COVID-19 or related federal, state or local laws, regulations, orders, rules, policies or guidance will not merit an extension of time.
CONSULTANT represents and warrants that it can perform the DESCRIBED SERVICES competently and in a timely fashion and has taken into account circumstances and delays that may occur as a result of or arising out of COVID-19 or applicable laws related thereto in entering into this AGREEMENT.
1.4 This AGREEMENT may be terminated in accordance with the provisions contained in this AGREEMENT.
1.5 CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on CITY until the AGREEMENT is fully executed and approved by CITY.
2.0 CONSULTANT'S OBLIGATIONS AND STATEMENT OF WORK
(ATTACHMENT A)
2.1 CONSULTANT shall provide the CITY with the professional services for the PROJECT that are described in ATTACHMENT A and are hereinafter referred to as the “DESCRIBED SERVICES.”
2.2 CONSULTANT shall perform all the tasks required to accomplish the DESCRIBED SERVICES in conformity with the applicable requirements of federal, state, and local laws in effect at the time that the DESCRIBED SERVICES are being performed and at the time that the scope of work is substantially completed by the CONSULTANT. a. The CONSULTANT is responsible for ensuring the professional quality, technical accuracy, and coordination of all services and documents furnished by the CONSULTANT under this AGREEMENT.
b. The CONSULTANT shall be obligated to comply with applicable standards of professional care in the performance of the DESCRIBED SERVICES. CITY recognizes that opinions relating to environmental, geologic, and geotechnical conditions are based on limited data and that actual conditions may vary from those encountered at the times and locations where the data are obtained despite the use of professional care. Where any condition exists for which the CONSULTANT must make a judgment that could result in an actual condition that is materially different, the CONSULTANT shall advise the CITY in advance and request specific direction.
Attachment 1
3 c. The CONSULTANT shall, without additional compensation, immediately correct or revise any DESCRIBED SERVICES that do not meet the foregoing professional responsibility standards.
2.3 During the term of this AGREEMENT, CONSULTANT shall maintain professional certifications as required in order to properly comply with all applicable federal, state, and local laws. If the CONSULTANT lacks such certification, this AGREEMENT is void and of no effect.
2.4 Conflict of Interest and Political Reform Act Obligations, if determined to be applicable according to ATTACHMENT B ‒ CONFLICT OF INTEREST DETERMINATION.
CONSULTANT shall at all times comply with the terms of the Political Reform Act and the local Conflict of Interest Ordinance. The level of disclosure categories shall be set by the CITY and shall reasonably relate to the scope of the DESCRIBED SERVICES.
3.0 PAYMENT AND SCHEDULE OF SERVICES (ATTACHMENTS C AND D)
3.1 The work to be performed under this AGREEMENT is described in ATTACHMENT A, Statement of Work and the approved CONSULTANT’s Cost Proposal, EXHIBIT 10-H-1, approved by Caltrans Independent Office of Audits and Investigations on June 30, 2021. The approved CONSULTANT’s Cost Proposal is attached hereto (EXHIBIT 10-H1) and incorporated fully herein by this reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence. The CONSULTANT is hired to render the DESCRIBED SERVICES and any payments made to CONSULTANT are full compensation for such services.
3.2 The amount of payment to CONSULTANT for providing the DESCRIBED SERVICES is set forth in ATTACHMENT C. No payment shall be allowed for any reimbursable expenses unless specifically described in ATTACHMENT C.
3.3 Payment for all undisputed portions of each invoice shall be made within 45 days from the date of the invoice.
3.4 The CITY’s review, approval or acceptance of, or payment for the services required under this AGREEMENT shall not be construed to operate as a release or waiver of any rights of the CITY under this AGREEMENT or of any cause of action arising out of CONSULTANT’s performance of this AGREEMENT, and CONSULTANT is responsible to the CITY for all damages to the CITY caused by the CONSULTANT’s performance of any of the DESCRIBED SERVICES.
3.5 The method of payment for this AGREEMENT will be based on lump sum. The total lump sum price paid to CONSULTANT will include compensation for all work and deliverables, including travel and equipment described in ATTACHMENT A (Statement of Work). No additional compensation will be paid to CONSULTANT, unless there is a change in the scope of Attachment 1
4 the work or the scope of the project approved in writing in advance by CITY. In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between CONSULTANT and the CITY. Adjustment in the total lump sum compensation will not be effective until authorized by AGREEMENT amendment and approved by CITY in writing.
3.6 Progress payments may be made monthly in arrears based on the percentage of work completed by CONSULTANT. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in ATTACHMENT A (Statement of Work), the CITY shall have the right to delay payment or terminate this AGREEMENT in accordance with the provisions of Section 8 (Termination).
3.7 CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by the CITY and notification to proceed has been issued by the CITY. No payment will be made prior to approval of any work, or for any work performed prior to approval of this AGREEMENT.
3.8 CONSULTANT will be reimbursed within thirty (30) days upon receipt by CITY of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. The final invoice must contain the final cost and all credits due to the CITY that include any equipment purchased under the provisions of Section 24 (Equipment Purchase and Other Capital Expenditures). The final invoice must be submitted within sixty (60) calendar days after completion of CONSULTANT’s work unless a later date is approved by the CITY.
Invoices shall be mailed to CITY at the following address: 1825 Strand Way, Coronado, CA, 92118, Attn: Administration Supervisor/Manager.
3.9. The total amount payable by CITY shall not exceed $980,141.
CITY’S OBLIGATIONS
4.1 CITY shall provide information as to the requirements of the project, including budget limitations. The CITY shall provide or approve the schedule proposed by the CONSULTANT.
4.2 CITY shall furnish the required information and services and shall render approvals and decisions expeditiously to allow the orderly progress of the DESCRIBED SERVICES as shown on the schedule required under ATTACHMENT D.
5.0 SUBCONTRACTING
5.1 The name, phone number, and location of the place of business of each SUBCONSULTANT that the CONSULTANT will use to perform work or render service to the Attachment 1
5 CONSULTANT in performing this AGREEMENT is contained in the CONSULTANT’s Cost Proposal (EXHIBIT 10-H1). No change to or addition of any SUBCONSULTANT shall be made without the written approval of the CITY.
5.2 If CONSULTANT subcontracts for any of the work to be performed under this AGREEMENT, CONSULTANT shall be as fully responsible to the CITY for the acts and omissions of CONSULTANT’s SUBCONSULTANTS and for the persons either directly or indirectly employed by the SUBCONSULTANTS, as CONSULTANT is for the acts and omissions of persons directly employed by CONSULTANT. Nothing contained in the AGREEMENT shall create any contractual relationship between any SUBCONSULTANT of CONSULTANT and the CITY. In any dispute between the CONSULTANT and its SUBCONSULTANT, the CITY shall not be made a party to any judicial or administrative proceeding to resolve the dispute. The CONSULTANT agrees to defend, hold harmless and indemnify the CITY as described in Section 13 of this AGREEMENT, should the CITY be made a party to any judicial or administrative proceeding to resolve any such dispute.
5.3 CONSULTANT shall bind every SUBCONSULTANT to all the terms of the AGREEMENT applicable to CONSULTANT’s work unless specifically noted to the contrary in the subcontract in question and approved in writing by the CONTRACT OFFICER. All subcontracts entered into between the CONSULTANT and its SUBCONSULTANTS shall also provide that each SUBCONSULTANT shall obtain insurance policies which shall be kept in full force and effect during any and all work on this PROJECT and for the duration of this AGREEMENT. The CONSULTANT shall require each SUBCONSULTANT to obtain all policies described in Section 14 in the amounts required by the CITY, which shall not be greater than the amounts required of the CONSULTANT.
5.4 Any third-party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds CITY harmless from any and all claims that may be made against CITY based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.
5.5 The CONSULTANT shall perform the DESCRIBED SERVICES with resources available within its own organization and no portion of the DESCRIBED SERVICES shall be subcontracted without written authorization by the CITY’s CONTRACT ADMINISTRATOR, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal (EXHIBIT 10-H1).
5.6 Any subcontract entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to SUBCONSULTANTS unless otherwise noted expressly.
5.7 CONSULTANT shall pay its SUBCONSULTANTS within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the CITY.
Attachment 1
6 5.8 Any substitution of SUBCONSULTANTS must be approved in writing by the CITY CONTRACT ADMINISTRATOR in advance of assigning any work to a substitute SUBCONSULTANT.
5.9 CONSULTANT or SUBCONSULTANT shall pay to any SUBCONSULTANT, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the SUBCONSULTANTS, to the extent of each SUBCONSULTANT’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or SUBCONSULTANT to a SUBCONSULTANT, CONSULTANT or SUBCONSULTANT may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the SUBCONSULTANT, of 2 percent of the amount due per month for every month that payment is not made.
5.10 The CITY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the CITY, of the DESCRIBED SERVICES, and pay retainage to CONSULTANT based on these acceptances. CONSULTANT or SUBCONSULTANT shall return all monies withheld in retention from all SUBCONSULTANTS within 15 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the DESCRIBED SERVICES by the CITY. Any delay or postponement of payment may take place only for good cause and with the CITY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or SUBCONSULTANT to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to CONSULTANT or SUBCONSULTANT in the event of a dispute involving late payment or nonpayment by CONSULTANT; deficient SUBCONSULTANT performance and/or noncompliance by a SUBCONSULTANT. This clause applies to both disadvantaged business enterprise (“DBE”) and non-DBE SUBCONSULTANTs.
5.12 Any violation of these provisions shall subject the violating CONSULTANT or SUBCONSULTANT to the penalties, sanctions and other remedies specified herein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or SUBCONSULTANT in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a SUBCONSULTANT.
6.0 CHANGES TO THE SCOPE OF WORK
6.1 The CONSULTANT shall not perform work in excess of the DESCRIBED SERVICES without the prior written approval of the CONTRACT OFFICER. All requests for extra work shall be made by written request for a contract modification submitted to the CONTRACT Attachment 1
7 OFFICER. To be effective, all contract modifications must be in writing and signed prior to the commencement of the work. Fees for additional work will be negotiated on a fixed-fee basis.
6.2 The CITY may unilaterally reduce the scope of work to be performed by the CONSULTANT. Upon doing so, CITY and CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a deductive change order or amendment to the AGREEMENT.
6.3 No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
7.0 ENTIRE AGREEMENT
7.1 This AGREEMENT and incorporated attachments set forth the entire understanding of the PARTIES with respect to the subject matters herein. If there are any inconsistencies between the incorporated attachments and this AGREEMENT, the terms of this AGREEMENT control.
There are no other understandings, terms, or other agreements expressed or implied, oral or written, except as set forth herein. No change, alteration, or modification of the terms or conditions of this AGREEMENT, and no verbal understanding of the PARTIES, their officers, agents, or employees shall be valid unless agreed to in writing by both PARTIES.
8.0 TERMINATION OF AGREEMENT
8.1 In the event of CONSULTANT’s default of any covenant or condition hereof, including, but not limited to, failure to timely or diligently prosecute, deliver, or perform the DESCRIBED SERVICES, or where the CONSULTANT fails to perform the work in accordance with the project schedule (ATTACHMENT D), the CITY may immediately terminate this AGREEMENT for cause if CONSULTANT fails to cure the default within ten (10) calendar days of receiving written notice of the default. Thereupon, CONSULTANT shall immediately cease work and within five (5) working days: (1) assemble all documents owned by the CITY and in CONSULTANT’s possession and deliver said documents to the CITY; and (2) place all work in progress in a safe and protected condition. The CONTRACT OFFICER shall make a determination of the percentage of work that CONSULTANT has performed that is usable and of worth to the CITY. Based upon that finding, the CONTRACT OFFICER shall determine any final payment due to CONSULTANT.
8.2 This AGREEMENT may be terminated by the CITY, without cause, upon the giving of thirty (30) days written notice to the CONSULTANT. Prior to the thirtieth (30th) day following the giving of the notice, the CONSULTANT shall assemble the completed work product to date, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether complete or not and put the same in order for proper filing and closing, and deliver said product to the CITY. The CONSULTANT shall be entitled to just and equitable compensation for any satisfactory work completed. The CONTRACT OFFICER and CONSULTANT shall endeavor to agree upon a percentage Attachment 1
8 complete of the contracted work if fees are fixed, or an agreed dollar sum based on services performed if hourly, and terms of payment for services and reimbursable expenses.
CONSULTANT hereby expressly waives any and all claims for damages or compensation arising under this AGREEMENT except as set forth herein.
8.3 The CITY may temporarily suspend this AGREEMENT, at no additional cost to the CITY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If CITY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
8.4 Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of this AGREEMENT by CONSULTANT, and CITY may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due CITY from CONSULTANT is determined.
8.5 In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, CITY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
9.0 OWNERSHIP OF DOCUMENTS & DATA
9.1 All work products (i.e., documents, data, studies, drawings, maps, models, photographs, and reports) prepared by CONSULTANT under this AGREEMENT, whether paper or electronic, shall become the property of CITY for use with respect to this project, and shall be turned over to the CITY upon completion of the DESCRIBED SERVICES or any phase thereof, as contemplated by this AGREEMENT. CONSULTANT shall provide the CITY a copy of all memoranda, assessments and final reports in the following format: (2) hard copies, an electronic copy in its original formant (MS Word, MS Excel, MS Project, etc.) and a PDF version of the document. CONSULTANT shall provide the CITY with all final plans, maps, specifications and estimates signed and stamped by a qualified licensed professional; format shall include an electronic copy in its original format and a PDF version of the document.
9.2. Contemporaneously with the transfer of such documents, the CONSULTANT hereby assigns to the CITY and CONSULTANT thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this AGREEMENT, except upon the CITY’s prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer.
9.3 CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the CITY’S CONTRACT OFFICER to determine, if CONSULTANT is Attachment 1
9 performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
9.4 CONSULTANT’s PROJECT Manager shall meet with CITY’s CONTRACT ADMINISTRATOR, or PROJECT MANAGER, as needed to discuss progress on the AGREEMENT.
9.5 It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of CITY, and CONSULTANT shall have no property right therein whatsoever. Immediately upon termination, CITY shall be entitled to, and CONSULTANT shall deliver to CITY, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to CITY which is in CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with the DESCRIBED SERVICES must be approved in writing in advance by CITY.
9.6 Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of CITY without restriction or limitation upon its use or dissemination by CITY.
9.7 Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this AGREEMENT. Any reuse by CITY for another project or project location shall be at CITY’s sole risk.
10.0 STATUS OF CONSULTANT
10.1 CONSULTANT shall perform the DESCRIBED SERVICES in a manner of CONSULTANT’s own choice, as an independent contractor and in pursuit of CONSULTANT’s independent calling, and not as an employee of the CITY. The CONSULTANT has and shall retain the right to exercise full control and supervision of all persons assisting the CONSULTANT in the performance of the DESCRIBED SERVICES, the CITY only being concerned with the finished results of the work being performed. CONSULTANT shall confer with the CITY at a mutually agreed frequency and inform the CITY of incremental work/progress as well as receive direction from the CITY. Neither CONSULTANT nor Attachment 1
10 CONSULTANT’s employees shall be entitled in any manner to any employment benefits, including, but not limited to, employer-paid payroll taxes, Social Security, retirement benefits, health benefits, or any other benefits, as a result of this AGREEMENT. It is the intent of the parties that neither CONSULTANT nor its employees are to be considered employees of CITY, whether “common law” or otherwise, and CONSULTANT shall indemnify, defend and hold CITY harmless from any such obligations on the part of its officers, employees and agents.
11.0 ASSIGNMENT OF CONTRACT
11.1 This AGREEMENT and any portion thereof shall not be assigned or transferred, nor shall any of the CONSULTANT’s duties be delegated or subcontracted, without the express written consent of the CITY.
12.0 COVENANT AGAINST CONTINGENT FEES
12.1 CONSULTANT warrants that it has not employed or retained any company or person, other than a bona fide employee working for CONSULTANT, to solicit or secure this AGREEMENT, and that CONSULTANT has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this AGREEMENT. For breach or violation of this warranty, the CITY shall have the right to terminate this AGREEMENT without liability, or, at the CITY’s sole discretion, to deduct from the AGREEMENT the price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.
13.0 INDEMNITY ‒ HOLD HARMLESS
13.1 To the fullest extent permitted by law, CONSULTANT, through its duly authorized representative, agrees that CITY and its respective elected and appointed boards, officials, officers, agents, employees, and volunteers (individually and collectively, “CITY Indemnitees”) shall have no liability to CONSULTANT or any other person, and CONSULTANT shall indemnify, protect, and hold harmless CITY Indemnitees from and against, any and all liabilities, claims, demands, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs, and expenses, including reasonable attorneys’ fees and disbursements (collectively “claims”) that arise out of the any failure to comply with applicable law, any injury or death of any persons(s), damage to property, loss of use of property, economic loss, or otherwise arising out of the performance of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of the CITY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT. To the extent that the DESCRIBED Attachment 1
11 SERVICES are performed by a design professional within the meaning of Civil Code section 2782.8(c), the foregoing shall be limited only to the extent necessary to be enforceable in compliance with Civil Code section 2782.8(a).
13.2 CONSULTANT’s obligation herein does not extend to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense arising from the sole negligence, recklessness or willful misconduct of the CITY or its elected or appointed boards, officials, officers, agents, employees or volunteers.
13.3 CONSULTANT shall reimburse the CITY’s Indemnitees, for all costs, attorneys’ fees, expenses, and liabilities (including judgment or portion thereof) incurred with respect to any litigation in which the CONSULTANT is obligated to indemnify, defend, and hold harmless the CITY’s Indemnitees pursuant to this AGREEMENT.
13.4 The provisions of this section 13 shall not be limited by any provision of insurance coverage that the CONSULTANT may have in effect, or may be required to obtain and maintain, during the term of this AGREEMENT. The provisions of this section 13 are continuing obligations and shall survive expiration or termination of this AGREEMENT.
13.5 PERS Eligibility Indemnification. In the event that any of CONSULTANT’s officers, employees, agents, subcontractors, representatives or other persons providing services on CONSULTANT’s behalf under this Agreement (collectively “CONSULTANT’s PERSONNEL”) claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS of the CITY, Contractor shall indemnify, defend (with counsel acceptable to CITY), and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee CONSULTANT’s PERSONNEL as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY.
Notwithstanding any other agency, state or federal policy, rule, regulation, law, or ordinance to the contrary, CONSULTANT’s PERSONNEL providing service under this AGREEMENT shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation and benefit including but not limited to eligibility to enroll in PERS as an employee of CITY and entitlement to any contributions to be paid by CITY for employer contributions and/or employee contributions for PERS benefits.
13.8 Limitation of CITY Liability. The payment made to CONSULTANT pursuant to this AGREEMENT shall be the full and complete compensation to which CONSULTANT and CONSULTANT’s PERSONNEL are entitled for performance of any work under this contract.
Neither CONSULTANT nor CONSULTANT’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the CITY. The CITY will not make any federal or state tax withholdings on behalf of Attachment 1
12 CONSULTANT. The CITY shall not be required to pay any workers’ compensation insurance on behalf of CONSULTANT.
13.9 Indemnification for Employee Payments. CONSULTANT agrees to defend (with counsel acceptable to CITY), indemnify and hold harmless the CITY for and against any obligation, claim, suit, or demand for tax, retirement contribution, including any contribution to the Public Employees Retirement System (PERS), Social Security, salary, or wages, overtime payment, or workers’ compensation payment which the CITY may be required to make on behalf of CONSULTANT or CONSULTANT’s PERSONNEL for work done under this AGREEMENT.
14.0 INSURANCE
14.1 CONSULTANT shall procure and maintain for the duration of this AGREEMENT insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the DESCRIBED SERVICES and the results of that work by the CONSULTANT or its agents, representatives, employees or subcontractors. Insurance shall be placed with insurers with a current A. M. Best rating of no less than “A” and “VII” unless otherwise approved in writing by the CITY’s Risk Manager.
14.2 CONSULTANT shall obtain and, during the term of this AGREEMENT, shall maintain policies of professional liability (errors and omissions), automobile liability, and general liability insurance from an insurance company authorized to do business in the State of California in insurable amounts of not less than two million dollars ($2,000,000) per occurrence and four million dollars ($2,000,000) aggregate. The insurance policies shall provide that the policies shall remain in full force during the life of the AGREEMENT and shall not be canceled or not renewed without thirty (30) days prior written notice to the CITY from the insurance company.
Statements that the carrier “will endeavor” and “failure to mail such notice shall impose no obligation or liability upon the company, its agents, or representatives,” will not be acceptable on insurance certificates. Maintenance of specified insurance coverage is a material element of this AGREEMENT.
14.3 Types and Amounts Required. CONSULTANT shall maintain, at minimum, the following insurance coverage for the duration of this AGREEMENT:
14.3.1 Commercial General Liability (CGL). CONSULTANT shall maintain CGL Insurance written on an ISO Occurrence form or equivalent providing coverage at least as broad as CG 00 01 which shall cover liability arising from any and all personal injury or property damage, including ongoing and completed operations, in the amount of $2,000,000 per occurrence and subject to an annual aggregate of $4,000,000. If limits apply separately to this project (CG 25 03 or 25 04) the general aggregate limit shall not apply. There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. insured claims or contractual liability. All defense costs shall be outside the limits of the policy. If the CONSULTANT or subcontractor maintains higher limits than the limits shown above, the CITY shall be entitled to coverage for the higher limits maintained by the CONSULTANT and/or their Attachment 1
13 subcontractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. Any excess or umbrella policies being used to meet the required limits of insurance will be evaluated separately and must meet the same qualifications as the CONSULTANT’s primary policy. If the DESCRIBED SERVICES are being performed by a design professional within the meaning of Civil Code section 2782.8(c), CONSULTANT shall obtain and maintain a project-specific general liability policy that insures all project participants for general liability exposures on a primary basis and also covers all design professionals for their legal liability arising out of their professional services on a primary basis.
14.3.2 Commercial Automobile Liability. CONSULTANT shall maintain Commercial Automobile Liability Insurance for all of the CONSULTANT’s automobiles, including owned, hired, and non-owned automobiles, written on an ISO form CA 00 01 12 90 or a later version of this form or an equivalent form providing coverage at least as broad for bodily injury and property damage for a combined single limit of no less than $1,000,000 per occurrence.
Insurance certificate shall reflect coverage for any automobile (any auto).
14.3.3 Workers’ Compensation. CONSULTANT shall maintain Workers’ Compensation insurance for all of the CONSULTANT’s employees who are subject to this AGREEMENT and to the extent required by applicable state or federal law, a Workers’ Compensation policy providing at minimum $1,000,000 employers’ liability coverage. The CONSULTANT shall provide an endorsement that the insurer waives the right of subrogation against the CITY and its respective elected officials, officers, employees, agents and representatives.
14.3.4 Professional Liability. CONSULTANT shall maintain Professional Liability (errors and omissions) coverage with a limit of no less than $2,000,000 per claim and $4,000,000 annual aggregate. The policy shall be on a claims made and in the aggregate basis. The CONSULTANT shall ensure both that: (1) the policy retroactive date is on or before the date of commencement of the DESCRIBED SERVICES; and (2) the policy will be maintained in force for a period of three years after substantial completion of the DESCRIBED SERVICES or termination of this AGREEMENT, whichever occurs last. The CONSULTANT agrees that for the time period defined above, there will be no changes or endorsements to the policy that increase the CITY’s exposure to loss. All defense costs shall be outside the limits of the policy.
If CONSULTANT maintains higher limits than the limits shown above, the CITY shall be entitled to coverage for the higher limits maintained by the CONSULTANT. Any available proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.
14.4 The CITY, its officers, officials, employees, and representatives shall be named as additional insureds on the required general liability, and automobile liability policies with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts, or equipment furnished in connection with such work or operations.
The CITY's additional insured status must be reflected on additional insured endorsement form (20 10 1185 or 20 10 1001 and 20 37 1001) which shall be submitted to the CITY. All policies Attachment 1
14 shall contain a provision stating that the CONSULTANT’s policies are primary insurance and that insurance (including self-retention) of the CITY or any named insured shall not be called upon to contribute to any loss, as reflected in an endorsement at least as broad as CG 20 01 04 13 which shall be submitted to the CITY. This provision shall apply regardless of any language of the general liability, and automobile liability policy maintained by the CONSULTANT during the term of this AGREEMENT.
14.5 Before CONSULTANT shall employ any person or persons in the performance of the AGREEMENT, CONSULTANT shall procure a policy of Workers’ Compensation insurance as required by the Labor Code of the State of California or shall obtain a certificate of selfinsurance from the Department of Industrial Relations.
14.6 CONSULTANT shall furnish certificates of said insurance and policy endorsements to the CONTRACT OFFICER prior to commencement of work under this AGREEMENT. Failure by the CONTRACT OFFICER to object to the contents of the certificate and/or policy endorsement or the absence of same shall not be deemed a waiver of any and all rights held by the CITY. Failure on the part of CONSULTANT to procure or maintain in full force the required insurance shall constitute a material breach of contract under which the CITY may exercise any rights it has in law or equity including, but not limited to, terminating this AGREEMENT pursuant to Paragraph 8.1 above.
14.7 The CITY reserves the right to review the insurance requirements of this section during the effective period of the AGREEMENT and to modify insurance coverages and their limits when deemed necessary and prudent by CITY’s Risk Manager based upon economic conditions, recommendation of professional insurance advisors, changes in statutory law, court decisions, or other relevant factors. The CONSULTANT agrees to make any reasonable request for the deletion, revision, or modification of particular insurance policy terms, conditions, limitations, or exclusions (except where those policy provisions are established by law, or are established by regulations that are binding upon either party to the contract, or are binding upon the underwriter to the contract). Upon request by CITY, CONSULTANT shall exercise reasonable efforts to accomplish such changes in policy coverages and shall pay the cost thereof.
14.8 Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the CITY’s option, the CONSULTANT shall demonstrate financial capability for payment of such deductibles or self-insured retentions.
14.9 CONSULTANT hereby grants to CITY a waiver of any right to subrogation that any insurer of said CONSULTANT may acquire against the CITY by virtue of the payment of any loss under such insurance. This provision applies regardless of whether or not the CITY has requested or received a waiver of subrogation endorsement from the insurer.
15.0 DISPUTES
15.1 If a dispute should arise regarding the performance of this AGREEMENT, the following procedures shall be used to address the dispute:
Attachment 1
15 a. If the dispute is not resolved informally, then, within five (5) working days thereafter, the CONSULTANT shall prepare a written position statement containing the party’s full position and a recommended method of resolution and shall deliver the position statement to the CONTRACT OFFICER.
b. Within ten working (10) days of receipt of the position statement, the CONTRACT OFFICER shall prepare a response statement containing the CITY’s full position and a recommended method of resolution and shall deliver the response statement to the CONSULTANT.
c. After the exchange of statements, if the dispute is not resolved within ten working (10) days, the CONSULTANT and the CONTRACT OFFICER shall deliver the statements to the City Manager who shall make a determination within ten working (10) days.
15.2 If the dispute remains unresolved for ten working (10) days following the City Manager’s determination, and the parties have exhausted the procedures of this section, the parties may then seek resolution by mediation or such other remedies available to them by law or in equity.
15.3 Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
16.0 GENERAL PROVISIONS
16.1 Accounting Records. CONSULTANT shall keep records of the direct reimbursable expenses pertaining to the DESCRIBED SERVICES and the records of all accounts between the CONSULTANT and SUBCONSULTANTS. CONSULTANT shall keep such records on a generally recognized accounting basis. At any time during normal business hours, and as often as CITY may deem necessary, the CONSULTANT shall make available to the CONTRACT OFFICER, or the CONTRACT OFFICER’s authorized representative, for examination, all of its records with respect to all matters covered by this AGREEMENT and shall permit CITY to audit, examine, and/or reproduce such records. CONSULTANT shall retain such financial and program service records for a period of four (4) years from the completion of the work or after termination or final payment under this AGREEMENT, whichever is later.
16.2 CONTRACT OFFICER. The CITY’s designated CONTRACT OFFICER has the authority to direct the CONSULTANT, approve actions, request changes, and approve additional services within her/his authority. Any obligation of the CITY under this AGREEMENT shall be the responsibility of the CONTRACT OFFICER. Excepting the provisions pertaining to dispute resolution, no other person shall have any authority under this AGREEMENT unless specifically delegated in writing.
16.3 Governing Law. This AGREEMENT and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this AGREEMENT shall be Attachment 1
16 held exclusively in a State court in the County of San Diego. CONSULTANT hereby waives the right to remove any action from San Diego County as is otherwise permitted by California Code of Civil Procedure Section 394.
16.4 Compliance with Laws/Business Certificate. CONSULTANT and its SUBCONSULTANTS are required to comply with all applicable federal, state and local laws, rules, regulations, orders, policies, protocols and guidance, including, but not limited to, obtaining and maintaining a City Business Certificate during the duration of this AGREEMENT and complying with COVID-19 sanitation protocols, health orders and guidance.
16.5. Drafting Ambiguities. The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this AGREEMENT, and the decision of whether or not to seek advice of counsel with respect to this AGREEMENT is a decision which is the sole responsibility of each Party. This AGREEMENT shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the AGREEMENT.
16.6. Conflicts between Terms. If an apparent conflict or inconsistency exists between the main body of this AGREEMENT and the Exhibits or Attachments, the main body of this AGREEMENT shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this AGREEMENT, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this AGREEMENT, the Attachments, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this AGREEMENT.
16.7 Americans with Disabilities Act. CONSULTANT assures that in the course of performing PROJECT work, it will fully comply with the applicable provisions of the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA (42 USC 12101 et seq.).
16.8 Responsibility for Equipment. [Reserved].
16.9 Public Works Contract. [Reserved].
17.0 NOTICES
17.1 Any notices to be given under this AGREEMENT, or otherwise, shall be served by certified mail. For the purposes hereof, unless otherwise provided in writing by the parties hereto:
a. The address of the CITY, and the proper person to receive any notice on the CITY’s behalf, is:
City of Coronado
Attachment 1
17 Public Services & Engineering
1825 Strand Way
Coronado, CA 92118
Attn.: Ed Walton, City Engineer
Tel. No. (619) 522-7383
b. The address of the CONSULTANT, and the proper person to receive any notice on the CONSULTANT’s behalf, is:
Glenn Parker, Principal
Wood Rodgers, Inc.
1775 Hancock Street, Suite 160
San Diego, CA 92110
Tel. No. (619) 819-9240
18.0 PROFESSIONAL CONSULTANT’S CERTIFICATION OF AWARENESS OF IMMIGRATION REFORM AND CONTROL ACT OF 1986
18.1 CONSULTANT certifies that CONSULTANT is aware of the requirements of the Immigration Reform and Control Act of 1986 (8 U.S.C. §§ 1101-1525) and has complied and will comply with these requirements, including, but not limited to, verifying the eligibility for employment of CONSULTANT and all its agents, employees, representatives and SUBCONSULTANTS, and any other person performing any of the DESCRIBED SERVICES.
19.0 ADDITIONAL PROVISIONS
19.1 Consequential Damages. Neither party shall be liable to the other for consequential damages, including, without limitation, loss of use or loss of profits, incurred by one another or their subsidiaries or successors, regardless of whether such damages are caused by breach of contract, willful misconduct, negligent act or omission, or other wrongful act of either of them.
19.2 Responsibility for Others. CONSULTANT shall be responsible to the CITY for its services and the services of its SUBCONSULTANTS. CONSULTANT shall not be responsible for the acts or omissions of any other persons engaged by the CITY nor for their construction means, methods, techniques, sequences, or procedures, or their health and safety precautions and programs.
19.3 Representation. The CONSULTANT is not authorized to represent the CITY, to act as the CITY’s agent, or to bind the CITY to any contractual agreements whatsoever.
19.4 Third-Party Review of CONSULTANT’s Work Product (Peer Review). At the option of the CITY, a review of the CONSULTANT’s work product may be performed by an independent expert chosen by the CITY. In such case, the CONSULTANT agrees to confer and cooperate fully with the independent expert to allow a thorough review of the work product by the expert. Such review is intended to provide the CITY with a peer review of the concepts, all Attachment 1
18 pre-design documentation, methods, professional recommendations, and other work product of the CONSULTANT. The results of this review will be furnished to the CITY and shall serve to assist the CITY in its review of the CONSULTANT’s deliverables under this AGREEMENT.
19.5 Periodic Reporting Requirements. The CONSULTANT shall provide a written status report of the progress of the work on a monthly basis that shall accompany the CONSULTANT’s payment invoice. The status report shall, at a minimum, report the work accomplished to date; describe any milestones accomplished; show and discuss the results on any testing or exploratory work; provide an update to the approved schedule (as set forth in ATTACHMENT D or, if no ATTACHMENT D, as approved by the CONTRACT OFFICER), and if not in accordance with the original schedule, describe how the CONSULTANT intends to get back on the original schedule; describe any problems or recommendations to increase the scope of the work; and provide any other information that may be requested by the CITY. The report is to be of a form and quality appropriate for submission to the City Council.
19.6 Brand or Trade Names. [Reserved.]
19.7 Rights Cumulative. All rights, options, and remedies of the CITY contained in this AGREEMENT shall be construed and held to be cumulative, and no one of the same shall be exclusive of any other, and the CITY shall have the right to pursue any one of all of such remedies or any other remedy or relief that may be provided by law or in equity, whether or not stated in this AGREEMENT.
19.8 Waiver. No waiver by either Party of a breach by the other Party of any of the terms, covenants, or conditions of this AGREEMENT shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant, or condition herein contained. No waiver of any default of either Party hereunder shall be implied from any omission by the other Party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect a default other than as specified expressly in said waiver.
19.9 Severability. In the event that any part of this AGREEMENT is found to be illegal or unenforceable under the law as it is now or hereafter in effect, either Party will be excused from performance of such portion or portions of this AGREEMENT that is found to be illegal or unenforceable without affecting the remaining provisions of this AGREEMENT.
19.10 Attachments Incorporated. All ATTACHMENTS and Exhibits referenced in this AGREEMENT are incorporated into the AGREEMENT by this reference.
20. FEDERAL COST PRINCIPLES. CONSULTANT agrees to comply with Title 2, Code of Federal Regulations (CFR), Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
Attachment 1
19 20.1 CONSULTANT agrees, and will assure that its SUBCONSULTANTS agree and will be obligated to agree, that (a) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual PROJECT cost items and (b) all Parties shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Every sub-recipient receiving PROJECT funds as a CONSULTANT, or SUBCONSULTANT under this AGREEMENT shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards to the extent applicable.
20.2 Any PROJECT costs for which CONSULTANT has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, and/or Part 48, Chapter 1, Part 31, are subject to repayment by CONSULTANT to CITY. Should CONSULTANT fail to reimburse moneys due CITY within 30 days of discovery or demand, or within such other period as may be agreed in writing between the parties hereto, CITY is authorized to intercept and withhold future payments due CONSULTANT from CITY.
21. RECORDS RETENTION / AUDITS.
21.1 CONSULTANT and its SUBCONSULTANTS shall establish and maintain an accounting system and records that properly accumulate and segregate incurred PROJECT costs and matching funds by line. The accounting system of CONSULTANT and its SUBCONSULTANTS shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. All accounting records and other supporting papers of CONSULTANT, its contractors, subcontractors and sub-recipients connected with PROJECT performance under this AGREEMENT shall be maintained for a minimum of three (3) years from the date of final payment to CONSULTANT and shall be held open to inspection, copying, and audit by representatives of CALTRANS, the California State Auditor, and auditors representing the federal government. Copies thereof will be furnished by CONSULTANT and its SUBCONSULTANTS upon receipt of any request made by CITY or its agents.
21.2 CITY will rely to the maximum extent possible on any prior audit of CONSULTANT pursuant to the provisions of State and CITY law. In the absence of such an audit, any acceptable audit work performed by CONSULTANT’S external and internal auditors may be relied upon and used by the CITY when planning and conducting additional audits.
21.3 For the purpose of determining compliance with applicable State and local laws in connection with the performance of CONSULTANT’S contracts with third parties and pursuant to Government Code Section 8546.7, CONSULTANT and its SUBCONSULTANTS shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, Attachment 1
20 the costs of administering those various contracts. All parties, including the CONSULTANT’S Independent CPA shall make such workpapers and materials available at their respective offices at reasonable at all reasonable times during the entire PROJECT period and for three (3) years from the date of final payment to CONSULTANT under this AGREEMENT. The CITY, CALTRANS, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, SUBCONSULTANTS, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
22. AUDIT REVIEW PROCEDURES
22.1 Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by agreement, shall be reviewed by CITY’s Director of Administrative Services.
22.2. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by CITY’s Director of Administrative Services of unresolved audit issues. The request for review will be submitted in writing.
22.3 Neither the pendency of a dispute nor its consideration by CITY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
22.4 CONSULTANT and SUBCONSULTANT agreements, including cost proposals and Indirect Cost Rates (“ICR”), may be subject to audits or reviews such as, but not limited to, an agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, CITY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by CITY CONTRACT ADMINISTRATOR to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by CITY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, CITY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
Attachment 1
21 22.5 CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (“IOAI”). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the CITY CONTRACT ADMINISTRATOR to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
22.5.1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each Party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, CITY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31); GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI. Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
25.5.2. If IOAI is unable to issue a cognizant letter per paragraph 22.5.1 above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
25.5.3. If the CONSULTANT fails to comply with the provisions of this paragraph 22.5, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in section 22.5.1 above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
Attachment 1
22 25.5.4. CONSULTANT may submit to CITY a final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all DESCRIBED SERVICES have been completed to the satisfaction of CITY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO CITY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between CITY and the CONSULTANT, either as a prime or SUBCONSULTANT, with the same fiscal period ICR.
23. DRUG FREE WORKPLACE CERTIFICATION.
23.1 By signing this AGREEMENT, CONSULTANT certifies under penalty of perjury under the laws of California that CONSULTANT will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code Sections 8350 et seq.) and will provide a Drug-Free workplace by doing all of the following:
23.1.1 Publish a statement notifying employees that unlawful manufacture, distribution, dispensation possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a).
23.1.2 Establish a Drug-Free Awareness Program as required by Government Code Section 8355(a)(2) to inform employees about all of the following:
A. The dangers of drug abuse in the workplace.
B. The person’s or organization's policy of maintaining a Drug-Free workplace; C. Any available counseling, rehabilitation, and employee assistance programs.
D. Penalties that may be imposed upon employees for drug abuse violations.
23.1.3 Provide, as required by Government Code Section 8355(a)(3), that every employee who works on the PROJECT:
A. Will receive a copy of the company’s Drug-Free policy statement.
B. Will agree to abide by the terms of the company's statement as a condition of employment on the contract or grant.
23.2 Failure to comply with the requirements of this section 23 may result in suspension of payments under this AGREEMENT or termination of this AGREEMENT or both, and CONSULTANT may be ineligible for the award of any future state contracts if CITY determines that any of the following has occurred: (1) CONSULTANT has made a false certification or, (2) CONSULTANT violates the certification by failing to carry out the requirements as noted above.
24. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
Attachment 1
23 24.1 Prior authorization in writing by Caltrans Contract Manager shall be required before CONSULTANT enters into any non-budgeted purchase order or subagreements exceeding $500.00 for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
24.2 For purchase of any item, service, or consulting work not covered in CONSULTANT's Cost Proposal and exceeding $500.00, with prior authorization by Caltrans Contract Manager, three (3) competitive quotations must be submitted with the request or the absence of bidding must be adequately justified.
24.3 CONSULTANT shall maintain an inventory record for each piece of nonexpendable equipment purchased or built with funds provided under the terms of this Agreement. The inventory record of each piece of such equipment shall include the date acquired, total cost, serial number, model identification (on purchased equipment), and any other information or description necessary to identify said equipment. Non-expendable equipment so inventoried are those items of equipment that have a normal life expectancy of one (1) year or more and an approximate unit price of $5,000.00 or more. In addition, theftsensitive items of equipment costing less than $5,000.00 shall be inventoried. A copy of the inventory record must be submitted to Caltrans on request by Caltrans.
24.4 Any equipment purchased by CONSULTANT will be returned to Caltrans at the end of this Agreement or, if not returned to Caltrans, it will be disposed of as agreed to by both parties. Both Caltrans and CONSULTANT agree to comply with State Administrative Manual, Section 3520, Disposal of Surplus Personal Property, if Caltrans determines that Caltrans will not retain the equipment.
24.5 49 CFR, Part 18, requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000.00 is credited to the project.
24.6 Any subagreement entered into as a result of this Agreement shall contain all the provisions of this clause.
25. STATE PREVAILING WAGE RATES
25.1 No CONSULTANT or SUBCONSULTANT may be awarded an agreement containing public work elements unless registered with the Department of Industrial Relations (“DIR”) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
Attachment 1
24 25.2 The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at CITY construction sites, at CITY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve CITY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
25.3 General Prevailing Wage Rate Determinations applicable to this PROJECT may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
25.4 CONSULTANT represents and warrants that it is familiar with the requirements of the California Labor Code and agrees to comply at all times with relevant statutes and regulations, including, but not limited to the fact that CONSULTANT must pay not less than prevailing wage rates as determined by the Director of Industrial Relations for applicable work done under this AGREEMENT. State of California prevailing wage rates can be found on the internet at http://www.dir.ca.gov/DLSR/PWD/Statewide.html. CONSULTANT is responsible for determining the correct title for job classifications and determining the appropriate wage rate.
CONSULTANT agrees to perform this AGREEMENT in accordance with ATTACHMENT F and all the obligations set forth therein to the extent required by law.
26.0 CONFLICT OF INTEREST
26.1 During the term of this AGREEMENT, the CONSULTANT shall disclose in writing any financial, business, or other relationship with CITY that may have an impact upon the outcome of this AGREEMENT or any ensuing CITY construction project. The CONSULTANT shall also disclose current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing CITY construction project which will follow.
26.2 CONSULTANT certifies that it has disclosed to CITY in writing any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise CITY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT.
CONSULTANT further agrees to complete any statements of economic interest if required by either CITY ordinance or State law.
26.3 The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT.
Attachment 1
25 26.4 The CONSULTANT hereby certifies that the CONSULTANT and SUBCONSULTANT and any firms affiliated with the any of them that bids on any construction contract or on any agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist.
27. REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATON
The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any CITY employee. For breach or violation of this warranty, CITY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
28. PROHIBITION OF EXPENDING CITY, STATE, OR FEDERAL FUNDS FOR
LOBBYING
28.1 The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
28.1.1. No State, Federal, or CITY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
28.1.2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
28.2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
28.3 The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subcontracts that exceed one Attachment 1
26 hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
29. NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE
29.1 The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Government Code §12990 and 2 CCR § 8103.
29.2 During the performance of this AGREEMENT, CONSULTANT and its SUBCONSULTANTS shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and SUBCONSULTANTS shall insure that the evaluation and treatment of all of their employees and applicants for employment are free from such discrimination and harassment.
29.3 CONSULTANT and SUBCONSULTANTS shall comply with the provisions of the Fair Employment and Housing Act (Government Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Government Code §§11135- 11139.5, and the regulations or standards adopted by CITY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Government Code §12990 (a-f), set forth in 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
29.4 CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this clause.
29.4 CONSULTANT and its SUBCONSULTANTS shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements.
29.5 CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
Attachment 1
27 29.6 The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
29.7 The CONSULTANT shall comply with regulations relative to non-discrimination in Federally assisted programs of the U.S. Department of Transportation (49 CFR Part 21 – Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of SUBCONSULTANTS.
29.8 CONSULTANT and SUBCONSULTANTS will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the local components of the DBE program plan, CONSULTANT and SUBCONSULTANTS will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program plan with respect to individuals of a particular race, color, sex, or national origin.
30. DEBARMENT AND SUSPENSION CERTIFICATION
30.1 The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
30.1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
30.1.2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
30.1.3. Does not have a proposed debarment pending; and
30.1.4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
30.2. Any exceptions to this certification must be disclosed to CITY in writing before execution of this AGREEMENT and updated as may be required during the term of the Attachment 1
28 AGREEMENT to keep the certification and any exceptions current. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
30.3 Exceptions to the Federal Government Excluded Parties List System maintained by the U.S. General Services Administration are to be determined by FHWA. 31 DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION
31.1. CONSULTANT, or SUBCONSULTANTS shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contracts as provided in 49 CFR Part
26. To ensure equal participation of DBEs provided in 49 CFR § 26.5, the CITY shows a contract goal for DBEs as specified in section 32.5 below. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE SUBCONSULTANTS and suppliers.
31.2 CONSULTANT shall meet the DBE goal shown in section 32.2 above or demonstrate that it made adequate good faith efforts to meet this goal. It is CONSULTANT’s responsibility to verify that the DBE firm is certified as DBE at date of proposal opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found here.
31.3 All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies that CONSULTANT purchases from DBEs counts towards the goal in the following manner:
31.3.1 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
32..2 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
31.3.3 Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR §26.55 defines "manufacturer" and "regular dealer."
31.4 This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”.
CONSULTANT and SUBCONSULTANTS will assist the CITY in a good faith effort to achieve California's statewide overall DBE goal.
31.5 The goal for DBE participation for this AGREEMENT is 13%. Participation by DBE CONSULTANT and SUBCONSULTANTS shall be in accordance with information contained Attachment 1
29 in Exhibit 10- O2: CONSULTANT Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE SUBCONSULTANT is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE SUBCONSULTANT, if the goal is not otherwise met.
31.6 CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
31.7. Contract Assurance. Under 49 CFR 26.13(b): CONSULTANT and SUBCONSULTANT shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
31.7.1 Withholding monthly progress payments;
31.7.2 Assessing sanctions;
31.7.3 Liquidated damages; and/or
31.7.4 Disqualifying CONSULTANT from future proposals as non-responsible.
31.8 Termination and Substitution of DBE Subconsultants.
31.8.1 CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE SUBCONSULTANT obtains the CITY’s written consent. CONSULTANT shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the CITY. Unless the CITY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02 CONSULTANT Contract DBE Commitment form, included in the Bid.
31.8.2 The CITY authorizes a request to use other forces or sources of materials if CONSULTANT shows any of the following justifications:
Attachment 1
30 a. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the PROJECT.
b. The CITY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the CITY’s bond requirements.
c. Work requires a CONSULTANT's license and listed DBE does not have a valid license under contractors license law.
d. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
e. Listed DBE's work is unsatisfactory and not in compliance with the subcontract. f. Listed DBE is ineligible to work on the PROJECT because of suspension or debarment.
g. Listed DBE becomes bankrupt or insolvent.
h. Listed DBE voluntarily withdraws with written notice from the subcontract. i. Listed DBE is ineligible to receive credit for the type of work required. j. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the subcontract.
k. The CITY determines other documented good cause exists.
31.8.3 CONSULTANT shall notify the original DBE of the intent to use other forces or material sources and provide the reasons and provide the DBE with at least 5 days to respond to the notice and advise CONSULTANT and the CITY of the reasons why the use of other forces or sources of materials should not occur. CONSULTANT’s request to use other forces or material sources must include:
a. One or more of the reasons listed in the preceding paragraph. b. Notices from CONSULTANT to the DBE regarding the request. c. Notices from the DBEs to CONSULTANT regarding the request.
31.8.4 If a listed DBE is terminated or substituted, CONSULTANT must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the subcontract to the extent needed to meet or exceed the DBE goal.
31.9 Commitment and Utilization
Attachment 1
31 The CITY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization. The CITY shall request CONSULTANT to:
a. Notify the CITY’s CONTRACT administrator or designated representative of any changes to its anticipated DBE participation
b. Provide this notification before starting the affected work c. Maintain records including:
▪ Name and business address of each 1st-tier SUBCONSULTANT; ▪ Name and business address of each DBE SUBCONSULTANT, DBE vendor, and DBE trucking company, regardless of tier; and ▪ Date of payment and total amount paid to each business (see Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment).
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work. If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date.
CONSULTANT shall submit the Notifications to the CITY. On work completion, CONSULTANT shall complete a DBE Certification Status Change, Exhibit 17-O, form and submit the form to the CITY within 30 days
of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17-F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the CITY within 90 days of contract acceptance. The CITY will withhold $10,000 until the form is submitted. The CITY will release the withholding upon submission of the completed form.
In the CITY’s reports of DBE participation to Caltrans, the CITY must display both commitments and attainments.
31.10. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the AGREEMENT is commensurate with the work it is actually performing, and other relevant factors.
Attachment 1
32 31.11 A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
31.12 If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its agreement with its own work force, or the DBE subcontracts a greater portion of the work of the agreement than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
31.13 CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
31.14 If a DBE SUBCONSULTANT is decertified during the life of the AGREEMENT, the decertified SUBCONSULTANT shall notify CONSULTANT in writing with the date of decertification. If a SUBCONSULTANT becomes a certified DBE during the life of the AGREEMENT, the SUBCONSULTANT shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to CITY’s Contract Administrator within thirty (30) calendar days.
31.15 After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the CONSULTANT shall complete and email the Exhibit 9- F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to the CITY.
31.16 Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section 32.
32. FUNDING REQUIREMENTS
32.1 It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
32.2. This AGREEMENT is valid and enforceable only if sufficient funds are made available to CITY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Attachment 1
33 Legislature, or CITY that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
32.3 It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
32.4 CITY has the option to terminate the AGREEMENT pursuant to section 8 (Termination), or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
33. CHANGE IN TERMS
33.1 This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
33.2 CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by CITY’s CONTRACT Administrator.
33.3 There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT, without prior written approval by CITY’s Contract Administrator.
34. CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, CITY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
35. RESERVED
36. INSPECTION OF WORK
CONSULTANT and any SUBCONSULTANT shall permit CITY, the State, and the FHWA to review and inspect the PROJECT activities and files at all reasonable times during the performance period of this AGREEMENT.
Attachment 1
34 37. SAFETY
37.1 CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by CITY representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction PROJECT site.
37.2 Pursuant to the authority contained in Vehicle Code §591, CITY has determined that such PROJECT areas are within the limits of the project and are open to public traffic.
CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
38. CLAIMS FILED BY LOCAL AGENCY’S CONSTRUCTION CONTRACTOR
38.1 If claims are filed by LOCAL AGENCY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
38.2 CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.
38.3 Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.
39. CONFIDENTIALITY OF DATA
38.1 All financial, statistical, personal, technical, or other data and information relative to CITY’s operations, which are designated confidential by CITY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
Attachment 1
35 38.2 Permission to disclose information on one occasion, or public hearing held by CITY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
38.3 CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or CITY’s actions on the same, except to CITY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
38.4 CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by CITY, and receipt of CITY’s written permission.
38.5 All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than CITY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of CITY or except by court order or as required by law. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this AGREEMENT, CITY has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, CITY’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
39. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
40. INCORPORATION OF CALTRANS DOCUMENTS
All Caltrans documents, exhibits and requirements for this PROJECT are hereby incorporated fully by reference into this AGREEMENT, including, but not limited to:
Exhibit 10-I
Exhibit 10-01
Exhibit 10-02
Exhibit 10-Q
Exhibit 15-H
Exhibit 17-F
Attachment 1
36 Exhibit 17-O
Exhibit 10-H1
Exhibit 10-H4
Exhibit 10-K
SR 1 R
41. SIGNATURES
41.1 Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this AGREEMENT, and that all resolutions or other actions have been taken so as to enable it to enter into this AGREEMENT.
CITY: CONSULTANT:
By: ______________________________
Tina Friend Date
City Manager
APPROVED AS TO CONTENT:
Wood Rodgers, Inc., a California corporation
By: ______________________________
Mary Rayback, President Date
By: ______________________________
Andrew Durling, Secretary Date
By: _______________________________
Leon P. Firsht, Director Date
APPROVED AS TO FORM:
By: _______________________________
Johanna Canlas, City Attorney Date
ATTEST:
By: _______________________________
Kelsea Holian, MMC City Clerk Date
Attachment 1
37 ATTACHMENT A ‒ STATEMENT OF WORK
ATTACHMENT B ‒ CONSULTANT CONFLICT OF INTEREST DETERMINATION ATTACHMENT C ‒ PAYMENT FOR SERVICES
ATTACHMENT D ‒ SCHEDULE OF SERVICES
ATTACHMENT E -- PREVAILING WAGE
Attachment 1
38 ATTACHMENT A: STATEMENT OF WORK
Contract No. 24-PS-EN-11-5090F15
CONSULTANT shall provide the CITY with the following professional services for the PROJECT (collectively, the “DESCRIBED SERVICES”:
I. COMMUNICATIONS AND REPORTS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the CITY’s CONTRACT OFFICER to determine if CONSULTANT is performing to expectations and is on schedule; to provide communication of interim findings; and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with CITY’s CONTRACT OFFICER and/or PROJECT MANAGER, as needed, to discuss progress on the AGREEMENT.
II. STATEMENT OF WORK
A. CONSULTANT. CONSULTANT/engineer shall sign all Plans, Specifications and Estimate (PS&E) and engineering data furnished under the AGREEMENT including registration number.
Environmental documents are not considered complete until a Caltrans District Senior Environmental Planner signs the Categorical Exclusion, a Caltrans Deputy District Director signs the Finding of No Significant Impact, or the Caltrans District Director signs the Record of Decision (see LAPM Chapter 6: Environmental Procedures, and the Standard Environmental Reference).
B. CITY Obligations. All data applicable to the project and in possession of CITY, another agency, or government agency that are to be made available to CONSULTANT are referred to in the AGREEMENT.
C. Conferences, Site Visits, Inspection of Work. This AGREEMENT provides for conferences as needed, visits to the site, and inspection of the work by representatives of the CITY, State, and/or FHWA. Costs incurred by CONSULTANT for meetings, subsequent to the initial meeting shall be included in the fee.
D. Documentation and Schedules. The CONSULTANT shall document the results of the work to the satisfaction of CITY, and when applicable, the State and FHWA. This may include preparation of progress and final reports, plans, specifications and estimates, or similar evidence of attainment of the AGREEMENT objectives.
III. SCOPE OF WORK
A. TASK 1 – CALTRANS PERMITTING
Task 1.1 – Cooperative Agreement
Attachment 1
39 CONSULTANT shall assist City with preparation of a cooperative agreement for the design and construction phases. It is assumed Caltrans will draft the agreement and CONSULTANT will review and edit with the City.
Deliverables:
• Cooperative Agreement
Task 1.2 – Preliminary Engineering Evaluation Report (PEER) CONSULTANT shall prepare a Preliminary Engineering Evaluation Report in accordance with Appendix I of the Project Development Procedures Manual. It is assumed no design deviations will be required for the project layout.
Deliverables:
• Preliminary Engineering Evaluation Report
Task 1.3 – Encroachment Permit Application
CONSULTANT shall prepare an Encroachment Permit Application for submittal to Caltrans.
Deliverables
• Encroachment Permit Application
B. TASK 2 – DESIGN SUPPORT AND PRELIMINARY STUDIES
Task 2.1 – Hydrology/Hydraulics Report
CONSULTANT shall prepare a hydrology and hydraulics report. The report will be used as the basis of design for the drainage. The report will determine how the storm water runoff will be conveyed and treated.
Deliverables
• Hydrology/HydraulicsReport
• Short Form Storm Water Data Report
Task 2.2 – Geotechnical Report
CONSULTANT shall prepare a geotechnical investigation to support the design of the proposed improvements. The scope includes all necessary permits, traffic control, and coordination prior to the actual drilling.
Review Available Geotechnical Information: CONSULTANT shall perform a general review of the geologic conditions of the proposed improvement area by reviewing available geologic and geotechnical literature pertaining to the project site. The review will include reports and geologic maps prepared by the California Geological Survey, the U.S. Geological Survey, and other government agencies. EMI will also review available geotechnical reports and as- built plans pertaining to existing adjacent structures, if available.
Site Visit: A geologic/geotechnical site reconnaissance by a California Certified Engineering Attachment 1
40 Geologist and/or a California Registered Geotechnical Engineer will also be performed of the proposed improvement areas to observe and check for geological conditions and features that could impact design, construction and cost of the proposed improvements.
Preliminary Foundation Report (PFR) EMI will prepare a Preliminary Foundation Report (PFR) in accordance with Caltrans Guidelines for Foundation Reports for Bridges (2021).
Preliminary foundation recommendations for structure type selection and preliminary cost estimates will be based on our review of existing information and information collected during the site visit. Preliminary foundation recommendations will be developed in accordance with the AASHTO LRFD Bridge Design Specifications (2017), Caltrans Amendments to AASHTO LRFD Bridge Design Specifications (2019) and Caltrans Memos to Designers. The Preliminary Foundation Report will provide the following:
• Seismic Design Criteria
• Any special issues regarding groundwater, difficult excavation, expansive soils, or other geologic hazards
• Alternative types of earth retention systems and foundations will be evaluated in consultation with the project structural engineer to allow selection of the most suitable structure type
• Preliminary earth pressures for design of retaining/tunnel walls • Preliminary foundation recommendations
Geotechnical Field Investigation: EMI will complete an encroachment permit application with the City of Coronado and Caltrans including a borehole location map and a description of the geotechnical work to be conducted. The geotechnical exploration plan will be provided to Wood Rodgers prior to the field investigation to submit to the City, for review and concurrence. Borings are proposed to be performed on the shoulders of Fourth Street and will require traffic control. A traffic control plan will be submitted with the encroachment permit application.
The borings will be conducted for the purpose of collecting soil samples and logging subsurface conditions. A rubber-tire, truck-mounted drill rig equipped with a mud-rotary circulation drilling system will be used to advance the exploratory borings. Spoils generated from the boring excavations will be contained in 55-gallon drums and temporarily stored on-site until the contents can be tested and legally transported on public roads to a licensed disposal facility.
Boreholes will be backfilled with cement-bentonite grout.
Small disturbed and relatively undisturbed soil samples will be collected using split-spoon samplers at a vertical interval of 5 feet, alternating between the Standard Penetration Test (SPT) sampler and the Modified California Drive (MCD) sampler. EMI will collect bulk samples of near-surface subgrade soils to determine R-value and maximum density. Soil samples will be logged during the field investigation, secured in their containers or collected in plastic bags, and transported to the EMI laboratory.
Laboratory Testing: Representative soil samples from each boring will be chosen for laboratory testing. Various laboratory tests will be performed on soil samples to determine or derive their engineering characteristics. The following laboratory tests are anticipated: grain size distribution, Attachment 1
41 expansion index, sand equivalent Atterberg Limits, R-value, maximum density and optimum moisture content, soil corrosion, direct shear and tri-axial strength testing.
Geotechnical Engineering Analyses: Results obtained from the field investigation and laboratory testing will be used to characterize subsurface soils and create idealized soil profiles for design purposes. A seismic hazard evaluation will be performed based on the current Caltrans Seismic Design Criteria (2019). Geotechnical analysis of structure foundations will be performed following the AASHTO, LRFD Bridge Design Specifications (2017) and current California State Amendments (2019). A site corrosion study will be performed following current Caltrans Corrosion Guidelines (2018). Pavement structural sections will be designed in accordance with the Caltrans Highway Design Manual (2020).
Report Preparation: EMI will prepare a stand-alone Foundation Report (FR) for potential proposed structures to be submitted to Caltnras for review. A Materials Report will also be prepared to submit to Caltrans that will provide structural pavement and corrosion recommendations. Draft reports, summarizing the results of the field investigation and laboratory soil tests, presenting the geologic and geotechnical site conditions and providing geotechnical design and construction recommendations will be prepared for submittal to the City and Caltrans.
EMI will address review comments and incorporate responses to comments into final reports.
Deliverables (hard copy & electronic PDF)
• Materials Report
• Foundation Report
Task 2.3 – Floodplain Analysis Report
CONSULTANT shall prepare a floodplain analysis report. The report will be used to determine impacts to conveyance of the 100-yr flood (if required by Caltrans). This report will study impacts within the project area, particularly within the traveled way and shoulder of SR-75 due to proposed improvements.
Deliverables
• Floodplain Analysis Report
Task 2.4 – Surveying & Mapping
Aerial mapping exists for the project limits and will be utilized for this phase of the work. The mapping will be augmented with field survey.
Deliverables
• Research and review survey record documents.
• Field surveys to locate features related to property boundaries (e.g. fences, monuments, etc.) to augment aerial mapping.
Task 2.5 – Utility Relocation Maps
CONSULTANT shall follow the Caltrans process (per Caltrans Local Assistance Procedures Manual, Chapter 14), which will ultimately yield all needed utility agreements such that the City can certify the project ROW.
Attachment 1
42 Deliverables
• As-built research
• Pothole exhibits
• Utility mapping for final design
Task 2.6 – Final Right of Way Maps
CONSULTANT shall use the previous ROW base map of the surrounding property boundaries.
Existing project controls will be provided. CONSULTANT shall define the approximate ROW needs. This information will be used to prepare Caltrans standard Right of Way Data sheets.
Deliverables
• Right of Way Data Sheet
Task 2.7 – Potholing and Utility Research
CONSULTANT shall identify needed potholing locations and services. CONSULTANT shall obtain permitting, backfill as appropriate, perform field work, and prepare a Pothole Report. A total of four (4) potholes are assumed located in state right of way.
Deliverables
• Four (4) Potholes
• Pothole Report
Task 2.8 – Preliminary Traffic Control Plans
CONSULTANT shall prepare a preliminary traffic control exhibit, showing where the proposed culvert is being installed along with the improvements within SR-75 and the Toll Plaza area. The exhibit will show overall phases, lane shifts, and be presented to Caltrans and the City for feedback prior to beginning detailed traffic control plans.
Deliverables
• Preliminary Traffic Control Plan Exhibit
Task 3: Environmental Review, Coordination, Design, and Permitting CONSULTANT will perform all required environmental research and analysis necessary for the project pursuant to the California Environmental Quality Act and the National Environmental Policy Act (NEPA) requirements, as well as the policies and procedures contained in Caltrans’ Environmental Handbook and Local Programs Manual. Caltrans is expected to be the lead agency for both CEQA and NEPA and the project will be reviewed through the Streamlined Oversight Process.
CONSULTANT will prepare a Categorical Exemption for CEQA (15301 Existing Facilities) and a Categorical Exclusion for NEPA (CFR 771.117(c)(3)/(7)/(26). Environmental technical studies will be required to document potential impacts and appropriate avoidance and minimization measures. No environmental permits for impacts to jurisdictional waters are anticipated. No mitigation plans or revegetation plans (outside of the landscape plan) are Attachment 1
43 anticipated to be necessary for compliance with CEQA and NEPA regulations. Prior documentation prepared for this project will be utilized, when feasible to reduce the environmental scope of work.
Task 3.1 – Update Preliminary Environmental Analysis Report (PEAR) CONSULTANT will prepare an updated PEAR inclusive of the pedestrian undercrossing and federal funding that necessitates NEPA documentation and will coordinate with the CITY and Caltrans for review and approval.
Deliverables
• Preliminary Environmental Analysis Report
Task 3.2 – Cultural Resources
The 2017 PEAR identified the San Diego-Coronado Bridge Historic District as the key cultural resources in the project area. Special consideration will be needed during development of a preliminary design to minimize impacts to this historic district and avoid adverse effects.
CONSULTANT w i l l prepare documentation in accordance with Section 106 of the National Historic Preservation Act. This work shall include the efforts to record archaeological and historical resources identified within the study area. A Historic Property Survey Report (HPSR) will be prepared to identify and evaluate each cultural resource in the project area and evaluate the potential for impacts this project could have on those resources. Changes in the project since 2017 include the addition of a pedestrian undercrossing of SR-75 and use of federal funds which trigger NEPA and National Historic Preservation Act compliance. Since the pedestrian undercrossing will involve substantially more excavation than the 2017 project, an Archaeological Survey Report will be required by Caltrans.
Task 3.2.1 – Historic Property Survey Report (HPSR): All cultural resource efforts will be completed in compliance with Section 106 of the National Historic Preservation Act (NHPA) and will follow the requirements set forth in the Caltrans Environmental Handbook Volume II, Cultural Resources and the Programmatic Agreement among the Federal Highway Administration, the Advisory Council on Historic Preservation, the California State Historic Preservation Officer, and the California Department of Transportation Regarding Compliance with Section 106 of the National Historic Preservation Act, as it pertains to the administration of the Federal-aid Highway Program in California. The HPSR is a summary form of all cultural resource related documentation. It includes sections for the project description, area of potential effects, consultation and public participation, cultural resource identification efforts, properties identified, finding for the undertaking, and CEQA considerations. Longer format documents will be included as attachments and are discussed below. Due to the extensive review of the areas surrounding the San Diego-Coronado Bridge in conjunction with evaluation of the historic district, additional evaluation of built environment historical resources is not anticipated to be necessary.
Task 3.2.2 Archaeological Survey Report (ASR): A qualified archaeologist from will prepare the Archaeological Survey Report (ASR) according to Caltrans specifications. This report will include and describe: 1) a cultural resource records search from the South Coastal Information Attachment 1
44 Center, 2) the results of Native American Consultation including a sacred lands file check from the Native American Heritage Commission and direct consultation with Native American groups consistent with the Section 106 process, 3) research and field methods used in identifying cultural resources, 4) and Area of Potential Effects Map, 5) the archaeological resources identified in the project vicinity, and 5) the potential of the project to adversely impact any archaeological resources.
Task 3.2.3 Finding of No Adverse Effect (FNAE) Report: CONSULTANT will prepare all cultural documentation as it relates to the San Diego-Coronado Bridge Historic District and its contributing elements. No new built environment resources are expected to require evaluation so a Finding of No Adverse Effect Report will be prepared in the Caltrans format to document potential impacts to the historic district and how those impacts will be minimized through following the Secretary of Interior Standards (SOIS) for the Treatment of Historic Properties.
Minimization of impacts will be documented in a SOIS Action Plan and will be included as an attachment to the FNAE report. These documents will be reviewed and approved by the City and Caltrans and then forwarded to the State Historic Preservation Officer for their concurrence.
Task 3.2.4 Paleontological Identification Report: CONSULTANT will perform paleontological archival research through the San Diego Natural History Museum to determine the extent of known fossil collection sites within and adjacent to the proposed project area.
After the archival research is conducted, a pedestrian survey of the proposed project area will be conducted to field check the results of the document review and records search, and to determine the site-specific conditions as they relate to the presence of and/or potential for paleontological resources. A paleontological resource assessment will then be conducted to determine if geologic units with the potential to contain fossils will be impacted by the project.
A Paleontological Identification Report (PIR) will be prepared that will describe the proposed project and summarize the results of the document review, records search, and field survey. The report will also include a discussion of potential impacts to paleontological resources and indicate whether or not a Paleontological Evaluation Report (PER) will need to be prepared.
GIS mapping will be included.
Task 3.2.5 Paleontological Evaluation Report (OPTIONAL) – Should the PIR indicate a high sensitivity for paleontological resources, an impact analysis will be undertaken to determine which of the proposed project- related earthwork activities may disturb potentially fossil-bearing geologic units, and where and at what depths this earthwork will occur. At this time the only location of concern is the proposed pedestrian undercrossing and most of the project area closer to the Coronado Bridge abutment includes a large layer of fill material that was used during bridge construction and is not expected to contain intact paleontological deposits. A Paleontological Evaluation Report (PER) will be prepared that will summarizes the contents of the PIR and discusses the results of the paleontological impact analysis. The PER will also make recommendations concerning whether impacts to paleontological resources can be avoided or whether a Paleontological Mitigation Plan (PMP) should be developed.
Attachment 1
45 Deliverables
• Historic Property Survey Report
• Archaeological Survey Report
• Area of Potential Effects Map
• Native American Consultation Log
• Finding of No Adverse Effect Report
• Paleontological Identification Report
• Paleontological Evaluation Report (OPTIONAL)
• Finding of Adverse Effect Report (OPTIONAL)
• Memorandum of Agreement (OPTIONAL)
Task 3.3 Section 4(f) Evaluation
CONSULTANT will prepare a Section 4(f) Evaluation for the project’s potential impacts to the San Diego-Coronado Bridge Historic District as a Section 4(f) resource. This evaluation will be based mostly on the findings and conclusions of the FNAE Report (Task 3.2.3) and will highlight how the project has been designed to minimize adverse effects to the historic district.
Since the project is expected to result in no adverse effects, the Section 4(f) Evaluation will result in a “de minimis” impact on the resource, with concurrence from the State Historic Preservation Officer. The request for concurrence will be made concurrent with the Section 106 process requesting concurrence on the FNAE. Prior to coordination with SHPO, the Section 4(f) Evaluation will be reviewed and approved by Caltrans.
Deliverables
• Section 4(f) Evaluation
Task 3.4 – Natural Environment Study (Minimal Impacts)
CONSULTANT will prepare a Natural environment Study (Minimal Impacts) (NESMI) in accordance with Caltrans guidelines that will consist of a pre-survey investigation, general biological survey, and preparation of a NESMI report, as outlined below. The NESMI will build from the biological resources memorandum prepared for a prior version of the project in 2017. While no new biological resources are expected to be present in the project area, the time that has passed since will require updated field surveys and documentation consistent with the current project description. Furthermore, federal funds warrant a Caltrans format report to fulfil the NEPA documentation requirements. A Biological Study Area (BSA) will be established in coordination with the City and Caltrans.
Research, Preparation and Coordination: CONSULTANT will conduct a search of the U.S.
Fish and Wildlife Service (USFWS) Information, Planning and Consultation System (IPaC), California Natural Diversity Database (CNDDB), and California Native Plant Society (CNPS) list for the region within the project limits.
General Biological Survey and Assessment: CONSULTANT will conduct a general biological survey and habitat assessment within the BSA per NESMI guidelines to map existing vegetation communities, identify suitable habitat for sensitive plant and animal species, identify potential jurisdictional waters and wetlands, and note other sensitive biological resources. Plant and Attachment 1
46 animal species observed during the survey will be recorded and representative photographs of the BSA will be taken.
NESMI Report: CONSULTANT will prepare a NESMI report in conformance with the minimum content and format requirements of the NESMI annotated outline on the Caltrans SER website. The NESMI report will include brief discussions addressing project location and description; study methods; existing conditions and sensitive biological resources determined to occur, or have the potential to occur within the BSA; applicable regulations (including the City’s Environmentally Sensitive Lands Regulations and Multiple Species Conservation Program); potential impacts on sensitive biological resources (including construction noise impacts); and feasible measures to avoid, minimize, and mitigate potential impacts. As necessary, figures, photographs, USFWS species list, results of database reviews, will be attached to the report.
Deliverables
• Natural Environment Study (Minimal Impacts)
Task 3.5 – Water Quality Technical Memorandum
Potential impacts to water quality will be evaluated in a Water Quality Technical Memorandum.
The scope of the study will follow Caltrans’ Water Quality Assessment Report Content and Recommended Format and the Revised Scoping Questionnaire for Water Quality Issues. The entire scope of the water quality assessment report template will not be necessary for this Project and only relevant sections will be included in the technical memorandum. Construction-related and long-term water quality impacts will be qualitatively evaluated for the proposed Project.
Both direct and cumulative impacts in the proposed area will also be described. The report will address regulatory compliance, including conformance with the Construction General Permit (Order No. 2009-0009 DWQ, as amended), and identify applicable regulatory water quality objectives and best management practices for the proposed project. If potential water quality impacts are identified best management practices (BMPs) will be recommended to minimize these impacts.
Deliverables
• Water Quality Technical Memorandum
Task 3.6 – Hazardous Waste Initial Site Assessment (ISA) CONSULTANT will prepare a hazardous waste initial site assessment to identify any potential hazards or hazardous waste within or nearby the project study area, as well as facilities located within the project study area that store, transfer, or utilize large quantities of hazardous materials. CONSULTANT will conduct an agency records search to identify all hazardous waste sites located within ¼ mile of the project study area and classified as a hazardous waste site under state law. CONSULTANT will conduct a visual survey of the project area via available public access to identify any obvious area of hazardous waste contamination. If hazardous waste or materials are identified within the project area, the ISA will identify subsequent procedures to determine the extent of contamination and remediation requirements.
Attachment 1
47 Deliverables
• Hazardous Waste Initial Site Assessment
Task 3.7 – Construction Noise/Vibration Memorandum
CONSULTANT will prepare a Construction Noise/Vibration Memorandum to evaluate the potential for impacts during construction activities for the proposed project. The construction noise analysis will determine if construction activities could result in a substantial increase in ambient noise levels in the project vicinity above levels during specific construction activities for sensitive receptors along Glorietta Boulevard. Special consideration will be given to the construction methods associated with the proposed pedestrian undercrossing structure.
Caltrans best management practices will be included to minimize construction vehicle noise and ensure consistency with the City’s noise ordinance.
Deliverables
• Construction Noise/Vibration Memorandum
Task 3.8 – Categorical Exemption/Categorical Exclusion
CONSULTANT has determined that this project can be approved using a CEQA Categorical Exemption and a NEPA Categorical Exclusion (CE/CE). These documents will be predicated on the findings and conclusions provided in the environmental technical studies and relies on the project having No Adverse Effect on the San Diego-Coronado Bridge Historic District.
Wood Rodgers will coordinate with Caltrans to prepare the CE/CE document to summarize the findings, conclusions, and measures outlined in the environmental technical studies.
Deliverables
• CEQA Notice of Exemption
• NEPA Categorical Exclusion Form
TASK 3.9 Individual Section 4(f) Evaluation (OPTIONAL) – Wood Rodgers will prepare a Individual Section 4(f) Evaluation for the project’s potential impacts to the San Diego-Coronado Bridge Historic District as a Section 4(f) resource. This evaluation will be based mostly on the findings and conclusions of the Finding of Adverse Effect Report (Task 3.2.6). Section 4(f) of the Department of Transportation Act requires that projects with substantial impacts to these protected resources include an analysis of avoidance alternatives. The report must demonstrate how each avoidance alternative is not reasonable and prudent. In addition to requiring Caltrans approval and concurrence from the State Historic Preservation Officer, the Individual Section 4(f) Evaluation must also be reviewed and approved by the Department of Interior in Washington D.C. pursuant to Section 4(f) requirements. The fee associated with this task accounts for the additional hours needed to complete an Individual Section 4(f) Evaluation in addition to the hours for Task 3.3.
Deliverables:
• Individual Section 4(f) Evaluation
Attachment 1
48 Task 3.10 Notice of Preparation (OPTIONAL) – The Wood Rodgers team will prepare a Notice of Preparation (NOP) for the EIR which will be circulated to responsible agencies and the public for their review and comment. The NOP will provide interested parties with sufficient information describing the project, its alternatives under consideration, the project location, and possible environmental impacts of the proposed project. The NOP will be sent via certified mail to each responsible agency as well as other known stakeholders identified by the City.
Wood Rodgers will coordinate with the City of Coronado to organize a NOP Scoping Meeting.
The project development team will attend the meeting to meet with participants and answer questions. Wood Rodgers will provide basic meeting materials (comment cards, sign in sheet) as well as project exhibits. A summary of comments and meeting minutes will be provided to the City and included in the Draft EIR.
Deliverables:
• Notice of Preparation
Task 3.11 Prepare Draft Environmental Impact Report/Environmental Assessment (OPTIONAL) – Consistent with the Caltrans format annotated outline, the Wood Rodgers team will prepare a draft Environmental Impact Report/Environmental Assessment (EIR/EA) based primarily on the collective environmental analysis included in the environmental technical studies. The EIR/EA will evaluate the broad categories of the Human Environment, Physical Environment, Biological Environment, and potential for cumulative impacts. In depth environmental impact analysis will be paired with outlining the strategies to avoid, minimize, and/or mitigate for environmental impacts associated with construction of the project. The EIR/EA document will be prepared in the Caltrans format and this scope of work assumes that Caltrans will be the lead agency for both CEQA and NEPA since a portion of the project occurs on State owned roadway. Once an administrative draft is complete, it will be submitted to the City and Caltrans for final review and approval. Three rounds of comments and revision are anticipated to obtain Caltrans approval. Wood Rodgers anticipates that this project can be completed using a “simple” EA which allows District 11 staff to complete reviews of the document locally and avoid involving Caltrans Headquarters in Sacramento for additional reviews and approval of the environmental document.
Deliverables
• Draft EIR/EA
Task 3.12 Public Circulation of the EIR/EA (OPTIONAL) – After the Draft EIR/EA as been approved by Caltrans, the Wood Rodgers team will prepare the document for circulation and public review. The EIR/EA has a critical objective of providing a means by which the general public and responsible agencies can participate in the environmental process by providing written comments on environmental and project issues addressed in the EIR/EA. Wood Rodgers will prepare a public Notice of Availability and Notice of Intent to adopt the EIR/EA. Wood Rodgers will also prepare a Notice of Completion and coordinate with the City and Caltrans to Attachment 1
49 deliver the document to the California State Clearinghouse for distribution to other state agencies. Wood Rodgers will develop a mailing distribution list of local property owners, stakeholders, and other public agencies to receive the public notice and Wood Rodgers will produce the requisite public notices and hard copies of the document distribution to those parties.
It is anticipated that the public review period will last for 45 days pursuant to CEQA and Caltrans Local Assistance Procedures Manual guidelines.
During circulation of the draft environmental document, Wood Rodgers will coordinate with the City and Caltrans to hold a public hearing in an open house format. The public hearing is intended to provide an opportunity for members of the public and stakeholders to ask questions about the project or the environmental analysis provided in the EIR/EA and to learn more about the project. A court reporter will be provided by Wood Rodgers to record oral comments and prepare a transcript of those comments after the meeting. Wood Rodgers will prepare large scale exhibits, sign-in sheets and comment cards, facilitate the meeting, conduct set up/cleanup activities, and compile public comments to be included in the Final EIR/EA document. This scope of work assumes that the City or Caltrans will arrange a public meeting venue and will provide key staff to participate in the public meeting.
Deliverables
• Public Circulation of the EIR/EA
Task 3.13 Prepare Responses to Public Comments (OPTIONAL) – At the close of the public review period for the EIR/EA, Wood Rodgers will compile all written public comments received during the 45 day review period and prepare a new appendix in the EIR/EA to document the comments. Wood Rodgers will prepare responses to each of the comments, and if warranted update the environmental analysis in the EIR/EA to be consistent with the responses provided.
At the following Project Development Team (PDT) meeting, Wood Rodgers will present the public comments to the City and Caltrans and review the draft responses prepared by Wood Rodgers. Feedback from the PDT will be incorporated into the responses and the final Comments and Responses will be provided in the Final EIR/EA document in an appendix.
Deliverables
• Responses to Public Comments
Task 3.14 Prepare Final Environmental Impact Report/Environmental Assessment (OPTIONAL)
Wood Rodgers will update the Draft EIR/EA to a final version using the Caltrans EIR/EA annotated outline as a template guide. The Final EIR/EA will include Findings of Fact and a Statement of Overriding Considerations for Significant Impacts that cannot be reduced to a less than significant level. The Final EIR/EA will also include a Finding of No Significant Impact for the NEPA determination. Any changes required as a result of public or agency comments received will be included in an appendix to the Final EIR/EA and written responses will be Attachment 1
50 provided for each. Wood Rodgers will coordinate with the City and Caltrans to review the Final EIR/EA, ultimately resulting in approval of the document by Caltrans.
Deliverables
• CEQA Notice of Exemption
Task 3.15 Notice of Determination and Environmental Commitment Record (OPTIONAL) – Subsequent to Caltrans’ approval of the Final EIR/EA, Wood Rodgers will prepare a Notice of Determination form, obtain Caltrans’ signatures, and submit the Notice to the State Clearinghouse to complete the CEQA process. An environmental commitment record will be prepared and included in the Final EIR/EA that documents all environmental avoidance, minimization, and mitigation measures that the City and Caltrans have committed to implement prior to, during, and after construction. This Environmental Commitment Record is intended to provide a complete record of environmental measures to be included in the final construction bid documents.
Deliverables
• CEQA Notice of Exemption
Task 4: Right-of-Way
Task 4.1 – Right-of-Way Engineering Services
CONSULTANT shall coordinate with the City and Caltrans to facilitate right of way requirements. It is not anticipated that transfer of properties (outside of easements) will be required for this project and all right of way activities will remain in public right of way.
Deliverables
• Right of Way Coordination
Task 4.2 – Plats and Legal Descriptions
It is assumed that two permanent easements will be required within public right of way and no easements will be needed on private property.
Deliverables\
• Two plats and legal descriptions associated with two proposed easements.
Task 4.3 – Utility Relocation Plans
Based on the refined utility mapping, CONSULTANT will prepare utility relocation plans and coordinate with corresponding utility companies. Five (5) relocations are assumed related to the Pedestrian Tunnel. It is assumed utility design plans will be performed by the associated utility company.
Deliverables
• Utility Relocation Plans
Attachment 1
51 • Utility Agreements
Task 5: Roadway Design
Task 5.1 – 65% Roadway Design Plans
The CONSULTANT shall prepare Roadway Design Plans for a 65% Submittal. The Roadway Design Plan sheets estimated for this project include forty-nine (49) plan sheets:
• Title Sheet (1)
• General Notes (1)
• Demolition Plans (3)
• Typical Sections and
Construction Details (1)
• Improvement Plans (2)
• Drainage (2),
• Pavement Delineation (2)
• Traffic Control (10)
• Water Pollution Control (3)
• Landscaping (14)
• Irrigation (10)
Attachment 1
52 Deliverables
• 65% Plans (two hard copies & electronic PDF)
Task 5.2 –
– 90% Roadway Design Plans
After receiving comments on the 65% Plans from the City and Caltrans, the CONSULTANT shall address all comments and submit the Plans to the City and Caltrans for Review at 90% completion of design.
Deliverables
• 90% Plans (two hard copies & electronic PDF)
Task 5.3 – 90%
– Final Design Roadway Design Plans
After receiving comments on the 90% Plans. from the City and Caltrans, the CONSULTANT shall address all comments and submit the Final Plans to the City and Caltrans for Review.
Documents shall be signed and stamped by the engineer of record.
Deliverables
• Final Plans (original format & electronic PDF)
Task 5.4 – Engineer’s Estimate
CONSULTANT will prepare an Engineer’s estimate for the 65%, 90%, and Final Submittal.
Comments on the Engineer’s Estimate from the City and Caltrans are to be addressed prior to the 90% and Final Submittals.
Deliverables
• 65%, 90%, and Final Estimate
Task 5.5 – Specifications
The CONSULTANT shall prepare special provisions and bid list for the 90% and Final Submittal. The Specifications and special provisions shall be in Caltrans format. It is understood that the City of Coronado will provide the front-end documents.
Deliverables
• 90% and Final Specifications
Task 6: Bidding and Award Assistance
Task 6.1 – Pre-Bid Meeting
This task will be for the CONSULTANT to provide support to the City during the bidding Attachment 1
53 phase. Tasks include providing general interpretation of the bid documents, assisting in preparing minor addendums, preparing an exhibit to present the project at a pre-bid meeting, and checking the bids if requested by the City.
Task 6.2 – General Support
In the construction phase of the project, the CONSULTANT will provide general interpretation of the bid documents by responding to RFI’s, attend meetings, and reviewing Submittals. Major Contract Change Orders that require issuing new plans and specifications will be scoped separately from this contract, once the level of effort is understood.
Deliverables
• The deliverables for these tasks will be exhibits and correspondence to support the bidding process.
Task 7: Construction Support Services
Task 7.1 – Construction Support
In the construction phase of the project, the CONSULTANT will provide general interpretation of the bid documents by responding to RFI’s, attend meetings, and reviewing Submittals. As requested by the City, this task will be budgeted in a separate, future contract. Major Contract Change Orders that require issuing new plans and specifications will be scoped separately from this contract, once the level of effort is understood.
Deliverables
• N/A with this contract
Task 7.2 – As-Builts
This task will include efforts to close out the project. Tasks include providing as-built plans, Auto CADD files, supporting documents, and project files to the City as requested. It is understood that the contractor will provide redlines of changes made for the CONSULTANT to incorporate.
Deliverables
• The deliverables for this task as-built drawings and other submittals as required. (original format & electronic PDF)
Task 8: Project Management and Meetings
Task 8.1 – General Project Management
CONSULTANT shall prepare status reports, invoicing, and schedule updates to achieve project objectives and maintain budget and schedule. The status report shall include a summary of effort completed during the invoice period as well as anticipated effort during the next invoicing period and outstanding or anticipated issues or challenges to be resolved.
Attachment 1
54 Deliverables
• Progress Reports, Project Coordination, Tracking, and Management Task 8.2 – Project Schedule
CONSULTANT shall provide a detailed project schedule, indicating milestones, major activities and deliverables. CONSULTANT shall update and submit the schedule as required.
Deliverables
• Project Schedule
Task 8.3 – Monthly Project Meetings
This task consists of the Prime and Sub-CONSULTANTs holding meetings to organize effort and direction for this project, for the duration of 12 months. This will include meeting attendance, meeting minutes, and organizing the meetings. 12 meetings are assumed.
Deliverables
• Agendas, Meeting Minutes, and Exhibits
Task 8.4 – City Council Meetings & Presentation
This task consists of efforts to present information on this project to City Council and receive feedback and direction. This will include attending 2 city council meetings and preparing presentations and exhibits.
Task 8.5 – Public Outreach & Presentation
This task consists of efforts to present information on this project to the public and receive feedback. This will include attending public outreach meetings and preparing informational presentations and exhibits. 2 meetings are assumed. Our public outreach efforts will include the following services:
CONSULTANT will provide public outreach support for two public outreach meetings. It is anticipated that one of these meetings will provide the public with an update on the alternatives that will be evaluated in the environmental document. The second public meeting will be conducted as-needed to provide an update on the project development or to highlight key issues that warrant public comment. CONSULTANT will be responsible for providing engineering support and development of large-scale foam board mounted exhibits, or a PowerPoint presentation, whichever is preferred by the City. The City will provide the public notice, meeting venue, and mailing list and CONSULTANT will get the meeting notices sent via USPS mail. All other meeting materials such as fact sheets, comment cards, sign in sheets etc. will be prepared by CONSULTANT. CONSULTANT staff will attend and run these meetings in coordination with the City.
Deliverables
• Engineering exhibits
• Meeting agendas
Attachment 1
55 • Presentations
Task 8.6 – Quality Control
CONSULTANT shall develop a project specific QA/QC plan; and include a schedule showing the proposed project development, including all milestones, monthly PDT meetings, and review time for said milestones by the City.
Deliverables
• Quality Control Plan and Review
III. CONSULTANT’S SUBMITTAL
Except as modified above, CONSULTANT shall perform the services as described in its submittal for the PROJECT dated December 18, 2021, and modified on August 2, 2023, are+ incorporated fully herein by this reference.
Attachment 1
56 ATTACHMENT B
Contract No. 21-ENG-PS- NO. 11-5090F15
CONFLICT OF INTEREST DETERMINATION
CONSULTANT shall at all times comply with the terms of the Political Reform Act and the local conflict of interest ordinance. CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. “CONSULTANT1” means an individual who, pursuant to a contract with a state or CITY:
(A) Makes a governmental decision whether to:
1. Approve a rate, rule, or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
4. Authorize the CITY to enter into, modify, or renew a contract, provided it is the type of contract that requires CITY approval;
5. Grant CITY approval of a contract that requires CITY approval and to which the CITY is a party, or to the specifications for such a contract;
6. Grant CITY approval of a plan, design, report, study, or similar item;
7. Adopt, or grant CITY approval of, policies, standards, or guidelines for the CITY, or for any subdivision thereof; or
(B) Serves in a staff capacity with the CITY and in that capacity participates in making a governmental decision as defined in Regulation 18704(a) and (b) or performs the same or substantially all the same duties for the CITY that would otherwise be performed by an individual holding a position specified in the CITY’s Conflict of Interest Code. 1 The CITY’s Conflict of Interest Code and the Political Reform Act refer to “CONSULTANTs,” not “contractors.” The CITY’s professional services agreements might refer to the hired professional as a “contractor,” not a “CONSULTANT,” in which case the Conflict of Interest Code may still apply. The Conflict of Interest Code, however, does not cover public works contractors.
Attachment 1
57 DISCLOSURE DETERMINATION:
X 1.CONSULTANT/CONTRACTOR will not be “making a government decision” or “serving in a staff capacity” as defined in Sections A and B above. No disclosure required. □ 2. CONSULTANT/CONTRACTOR will be “making a government decision” or “serving in a staff capacity” as defined in Sections A and B above. As a result, CONSULTANT shall file, with the City Clerk of the City of Coronado in a timely manner as required by law, a Statement of Economic Interest (Form 700), as required by the City of Coronado Conflict of Interest Code, and the Fair Political Practices Commission, to meet the requirements of the Political Reform Act.*
Signature Date
Name Leon P. Firsht, Director Department Public Svcs & Engineering City Attorney Approval of Determination
City Manager Approval of Determination
*The CONSULTANT’s disclosure of investments, real property, income, loans, business positions, and gifts, shall be limited to those reasonably related to the project for which CONSULTANT has been hired by the CITY.
Attachment 1
58 ATACHMENT C
Contract No. 24-ENG-PS- NO. 11-5090F15
FEE SCHEDULE
A. PAYMENT FOR SERVICES: Payments to the CONSULTANT for the DESCRIBED SERVICES shall be made in the form of monthly payments due for each sub-task on a percentage of the total fee. Percentage of completion of each sub-task shall be assessed in the sole and unfettered discretion of the CONTRACT OFFICER or the designated representative.
All invoices submitted by the CONSULTANT shall show an hourly reconciliation of time spent on each sub-task and will be billed against this work order. The original invoice shall be provided for any subcontracted services. Normal processing time for payments is four (4) weeks.
The CITY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the CITY as to the designation of tasks to be performed and the results to be accomplished.
Description of
Services
Wood
Rodgers, Inc. Subconsultant Total Costs
TASK 1 -
CALTRANS
PERMITTING
$50,305.12 $11,815.47 $62,120.60
TASK 2 - DESIGN
SUPPORT &
PRELIMINARY
STUDIES
$89,049.11 $131,609.74 $220,658.84
TASK 3 -
ENVIRONMENTAL
REVIEW,
COORDINATION,
DESIGN, &
PERMITTING
$227,729.38 $95,630.19 $323,359.57
TASK 4 - RIGHTOF-WAY
$23,678.34 $8,386.83 $32,065.17
Attachment 1
59 TASK 5 -
ROADWAY
DESIGN
$19,376.66 $132,726.91 $152,103.57
TASK 6 - BIDDING
& AWARD
ASSISTANCE
$5,632.99 $4,263.15 $9,896.14
TASK 7 -
CONSTRUCTION
SUPPORT
SERVICES
$9,665.32 $2,598.62 $12,263.93
TASK 8 - PROJECT
MANAGEMENT &
MEETINGS
$88,822.78 $33,635.32 $122,458.10
DIRECT COSTS $4,222.58 $40,992.00 $45,214.58
TOTAL FEE $518,482.28 $461,658.22 $980,140.50
B. CALTRANS REQUIREMENTS: CONSULTANT shall comply with all state and federal requirements applicable to this AGREEMENT. The California Department of Transportation’s Independent Office of Audits and Investigations (IOAI) conducted financial reviews of Indirect Cost Rates (ICR) for all CONSULTANTs, as certified in their Exhibit 10-K, CONSULTANT Certification of Contract Costs and Financial Management System. The AGREEMENT is between CONSULTANT and the CITY. The review was conducted in accordance with Title 23 United States Code (USC) 112(b)(2) and Title 23 Code of Federal Regulation (CFR) 172.11 to evaluate if the costs used in the ICR calculations are reasonable and meet requirements of 48 CFR, Chapter 1, Part 31. IOAI did not audit, examine, or test any of the CONSULTANT’S financial management systems under generally accepted government auditing standards, and did not express an opinion on its adequacy, or express an opinion on any costs or credits arising from the AGREEMENT.
In addition, IOAI did not review proposed direct labor and other direct cost (ODC) items for reasonableness and allowability per 48 CFR, Chapter 1, Part 31. Please note the following as it relates to proposed direct labor and ODC items:
Attachment 1
60 • 48 CFR 31.202(a) - No final cost objective shall have allocated to it as a direct cost any cost, if other costs incurred for the same purpose in like circumstances have been included in any indirect cost pool to be allocated to that or any other final cost objective. • Administrative direct labor classifications are generally included in the indirect cost pool and should not be included in the cost proposal or fee schedule as a direct cost. • ODC items considered “Tools of the trade” are generally included in the indirect cost pool and should not be included in the cost proposal or fee schedule as a direct cost. • Per the CITY’s Master Agreement with the California Department of Transportation (Caltrans), all travel related costs paid to all CONSULTANT, such as mileage, per diem for meals and hotel rates, shall not to exceed the California Department of Human Resources’ rates.
IOAI reviewed and accepted the initial submittal for the CONSULTANTS’ ICRs. Due to the reduced scope and cost falling under the $1,000,000 threshold, resubmittal was not required.
The ICRs and corresponding Caltrans’ acceptance identification numbers (ID) were certified by the Prime and Subconsultants.
CONSULTANT ICR Acceptance
ID
One-Year Applicable
Fiscal Period
Accepted
ICR
Wood Rodgers, Inc. L2024-1762 1/1/22 – 12/31/22 191.02% Michael Baker International D2024-1153 1/1/22 – 12/31/22 141.958% Earth Mechanics, Inc. D2021-0910 2/1/21 – 1/31/21 179.97% Monument, ROW D2021-0708 1/1/22 – 12/31/21 116.12%
PanGIS L2022-1561 1/1/20 – 12/31/20 171.59%
Mikesell Historical Consulting L2021-1339 1/1/19 – 12/31/19 168.83% Christine L. Harvey dba
Leopold Biological Services
L2021-1337 1/1/22 – 12/31/22 21.75%
San Dieguito Engineering, Inc. D2024-1151 1/1/21 – 12/31/21 173.93% Note: For future contracts using the same fiscal year ICR, IOAI may request a separate field or project-specific rate if appropriate (FAR 31.31.203(f) and the AASHTO Audit Guide Section 5.6).
The Caltrans’ acceptance ID is also posted to IOAI’s website https://ig.dot.ca.gov/resources/icrid-log.
Attachment 1
61 ATTACHMENT D
Contract No. 21-ENG-PS- NO. 11-5090F18
SCHEDULE OF SERVICES
CONSULTANT agrees to diligently pursue the work described. The following schedule contractually obligates the CONSULTANT to perform the DESCRIBED SERVICES to meet the time duration for each Phase of work shown:
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62 ATTACHMENT E
STATE PREVAILING WAGE RATES AND OBLIGATIONS
Prevailing Wage Rates: This project is a "public work" in accordance with California Labor Code §§1720, et seq. It is the sole responsibility of the CONTRACTOR to ensure that all workers employed in the execution of the AGREEMENT are paid the correct prevailing wage rate. CONTRACTOR is required to comply with California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813 and 1815, which are incorporated by reference, and the CONTRACTOR agrees to comply with all of the above-referenced provisions and all other statutes or regulations that may be applicable to the performance of the DESCRIBED SERVICES. Specifically, CONTRACTOR agrees to:
a. Pay all workers not less than the general prevailing rate of per diem wages for work of similar character in the locality in which the public work is performed. b. Pay all workers not less than the general prevailing rate of per diem wages for holiday and for overtime work that exceeds 8 hours in one day and 40 hours in one week. c. Adhere to the compliance measures outlined in Labor Code section 1775(b) for any subcontractor that the CONTRACTOR chooses to use on this project. d. Maintain, certify and make available for inspection, payroll records as required by Labor Code section 1776.
e. Comply with all apprenticeship requirements pursuant to Labor Code section 1777.5.
Not less than the State general prevailing wages, as determined by the Director of the Department of Industrial Relations, shall be paid by the CONTRACTOR and its subcontractors to all workers employed on the project, as applicable. The statutory provisions for penalties for failure to pay prevailing wages and for failure to comply with state's wage and hour laws will be enforced.
CITY has obtained from the Director of the Department of Industrial Relations said Director's General Prevailing Wage Determinations for the locality in which the work is to be performed.
Said determinations are on file and available for review online at the Department of Industrial Relations’ website located at: http://www.dir.ca.gov/DLSR/PWD SB 854 Notice: CITY public works projects are subject to compliance monitoring and enforcement by the Department of Industrial Relations (“DIR”) in accordance with Labor Code Section 1771.4(a)(1). As part of this program, CONTRACTORS and subcontractors on Public Works Projects are required to be registered with the DIR in accordance with Labor Code Section 1725.5. Unregistered CONTRACTORS are not qualified to bid on, be listed in a bid, listed as a subcontractor, or engage in the performance of any public works contract, all as more Attachment 1
63 particularly described in Labor Code Section 1771.1(a). CITY has no duty to accept a bid or enter into a contract without proof of the CONTRACTOR’s current registration pursuant to Labor Code Section 1771.1(b). The prime CONTRACTOR shall be required to post the job site with all notices required by regulations per Labor Code Section 1771.4(a)(2), whether or not CITY also posts.
Labor Code Compliance: CONTRACTOR shall comply with the provisions of the Labor Code requiring the payment of prevailing wages on public works, commencing with Section 1720. In accordance with Labor Code Section 1775, the CONTRACTOR shall forfeit an amount, as determined by the Labor Commissioner, for each worker paid less than the applicable prevailing wage rate for the work or craft in which that worker is employed for any work done under the AGREEMENT by CONTRACTOR or by any subcontractor. CONTRACTOR agrees to pay the difference between the prevailing wage rate and amount paid to each worker in accordance with Labor Code Section 1775 (a)(2)(E).
Pursuant to Labor Code Section 1770, the Director of the DIR has ascertained the general prevailing rate of per diem wages and a general prevailing rate for legal holiday and overtime work for each craft required for execution of the AGREEMENT. In accordance with Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file and can be viewed during normal business hours at Coronado City Hall, located at 1835 Strand Way, Coronado, CA 92118. CONTRACTOR shall post a copy of the applicable prevailing wage rates at the job site.
Wage rates set forth are the minimum that may be paid by the CONTRACTOR. Nothing herein shall be construed as preventing the CONTRACTOR from paying more than the minimum rates set. No extra compensation whatsoever will be allowed by the CITY due to the inability of CONTRACTOR to hire labor at minimum rates, nor for necessity for payment by CONTRACTOR of subsistence, travel time, overtime, or other added compensations, all of which possibilities are elements to be considered and ascertained to CONTRACTOR’s own satisfaction in preparing its bid or entering into the AGREEMENT.
If it becomes necessary to employ crafts other than those listed in the General Prevailing Wage Rate, CONTRACTOR shall obtain a wage rate determination. The rates thus determined shall be applicable as minimum from the time of initial employment. CONTRACTOR shall be responsible for paying the applicable rate.
CONTRACTOR and each subcontractor shall keep, certify and make available accurate payroll record in accordance with Labor Code Sections 1771.4(a)(3) and 1776. The record shall contain the names, addresses, social security numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by CONTRACTOR and/or subcontractor in Attachment 1
64 connection with the DESCRIBED SERVICES. Payroll records shall be certified and shall be on forms provided by the Division of Labor Standards Enforcement, or shall contain the same information as those forms. Upon written request by the CITY, CONTRACTOR’s and subcontractor's certified payroll records shall be furnished within 10 days. CONTRACTOR’s and subcontractor's certified payroll records shall be available for inspection at the principal office of the CONTRACTOR.
Apprentices: CONTRACTOR and each subcontractor shall comply with the requirements of Labor Code Section 1777.5, and any related regulations regarding the employment of registered apprentices. Properly registered apprentices shall be employed in the execution of the DESCRIBED SERVICES at the ratios required, but in no case shall the ratio be less than one hour of apprentice work for every five hours of journeyman work. Every apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade at which the apprentice is employed, and shall be employed only at the work of the craft or trade to which the apprentice is registered. The CONTRACTOR shall be responsible for compliance with Labor Code Section 1777.5 for all apprenticeable occupations.
Attachment 1