CA Office Approved Template (5-20-22)
AGREEMENT FOR PROFESSIONAL SERVICES
Mikhail Ogawa Engineering Inc.
Contract No. 24-PS-EN-797
This AGREEMENT is made and entered into as of the date of execution by the City of Coronado, a California municipal corporation, hereinafter referred to as “CITY” and Mikhail Ogawa Engineering, Inc., 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 to provide as-needed consulting services for its storm water and wastewater compliance and program management. The CITY will utilize the CONSULTANT’s wide range of services to support the CITY’s storm water regulatory program to maintain waste discharge requirements and permits, and provide program management support services. The work to be performed by CONSULTANT shall be referred to herein as the “DESCRIBED SERVICES.”
On February 20, 2024, the City Council for the CITY approved this AGREEMENT and authorized the City Manager or Designee to execute the form of this AGREEMENT.
CONSULTANT represents itself as being a professional financial or other relevant consulting firm, possessing the necessary 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.
This AGREEMENT is let pursuant to Coronado Municipal Code 8.04.070 and is awarded under the City Manager or designee’s authority pursuant to Coronado Municipal Code 8.05.020.
The CITY’s Director of Public Services and Engineering shall serve as the CITY’s “Contract Officer” for this AGREEMENT and has the authority to direct the CONSULTANT, approve actions, request changes, and approve additional services.
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
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1.1 This AGREEMENT shall be effective beginning March 1, 2024, for a term of three (3) years or until February 28, 2027. The CITY shall have the option to extend the AGREEMENT, if agreed to by the CONSULTANT, for up to two (2) additional one (1)-year terms, for a total of five (5) consecutive years, 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.
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.
2.0 CONSULTANT'S OBLIGATIONS AND SCOPE OF WORK (ATTACHMENT A)
2.1 The scope of this AGREEMENT is indefinite in quantity. The CITY anticipates issuing multiple, individual task orders to the Consultant, each in the form set forth in Attachment A to this AGREEMENT (each, a “Task Order,” collectively, the “Task Orders”). Each Task Order will be sequentially numbered, signed, dated and have appended to it attachments A, B C, and D which are specific to the respective Task Order (for example, 24-MOE- 001-A, 24-MOE-001-B, 24-MOE-001-C, 24-MOE-001-D). The scope of each Task Order will be specifically defined in its Attachment A, SCOPE OF WORK. The agreed to fees for the scope of work for the Task Order will be set forth in Attachment B, PAYMENT FOR SERVICES. The CITY and CONSULTANT shall agree on a schedule for the completion of the defined scope of work for the Task Order, which shall be set forth in Attachment C, SCHEDULE OF SERVICES. Attachment D of each Task Order will be included as necessary to list SUBCONSULTANTS. The CONSULTANT shall commence work on each Task Order when issued a Notice to Proceed. The Task Orders and all their corresponding attachments (i.e. A, B, C, and D) form the specific task to be performed and when executed shall be subject to all the terms and conditions of this AGREEMENT.
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.
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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.
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 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.
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4.0 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 CONSULTANT in performing this AGREEMENT is contained in ATTACHMENT E. 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 contracts entered into between the CONSULTANT and its SUBCONSULTANT 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 the 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.
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 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.
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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.
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 fifteen (15) days’ written notice to the CONSULTANT. Prior to the fifteenth (15th) day following the giving of the notice, the CONSULTANT shall assemble the completed work product to date, 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 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.
9.0 OWNERSHIP OF DOCUMENTS
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 DocuSign Envelope ID: B27CD593-0E38-419B-929C-85B207B80FC6 Attachment 1
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the CITY upon completion of the DESCRIBED SERVICES or any phase thereof, as contemplated by this AGREEMENT.
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.
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 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.
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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, or pertain to, or relate to this AGREEMENT or the negligence, recklessness, or willful misconduct of CONSULTANT, its employees, agents, and SUBCONSULTANTS in the performance of the DESCRIBED SERVICES.
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 provide a defense (with counsel acceptable to CITY) to the CITY’s Indemnitees, or, at the CITY’s option, 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.
13.7 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 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 services 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.
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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 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 one million dollars ($1,000,000) per occurrence and two 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 DocuSign Envelope ID: B27CD593-0E38-419B-929C-85B207B80FC6 Attachment 1
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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 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.
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 $1,000,000 per claim and $2,000,000 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.
14.3.5. Cyber Liability Insurance. CONSULTANT shall maintain cyber liability insurance with limits not less than $2,000,000 per occurrence or claim. Coverage shall be sufficiently broad to respond to the duties and obligations as are undertaken by CONSULTANT in this AGREEMENT and shall include claims involving infringement of intellectual property, infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security.
The policy shall provide coverage for breach response costs as well as regulatory fines and DocuSign Envelope ID: B27CD593-0E38-419B-929C-85B207B80FC6 Attachment 1
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penalties as well as credit monitoring expenses with limits sufficient to respond to such obligations. All defense costs shall be outside the limits of the policy.
14.4 The CITY, its officers, officials, employees, and representatives shall be named as additional insureds on the required general liability, cyber liability, 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 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, cyber 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 self-insurance 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.
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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:
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.
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 DocuSign Envelope ID: B27CD593-0E38-419B-929C-85B207B80FC6 Attachment 1
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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 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 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 Non-Discrimination. CONSULTANT shall not discriminate against any employee or applicant for employment because of sex, race, color, age, religion, ancestry, national origin, disability, military or veteran status, medical condition, genetic information, gender expression, marital status, or sexual orientation. CONSULTANT shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their sex, race, color, age, religion, ancestry, national origin, disability, military or veteran status, medical condition, genetic information, gender expression, marital status, or sexual orientation and shall make reasonable accommodation to qualified individuals with disabilities or medical conditions. Such action shall include, but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay, or other forms of compensation, and selection for training, including apprenticeship.
CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by CITY setting forth the provisions of this non-discrimination clause.
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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
Public Services & Engineering Department
101 B Ave
Coronado, CA 92118
Attn.: Jim Newton, Assistant Director
Tel. No. (619) 522-7312
b. The address of the CONSULTANT, and the proper person to receive any notice on the CONSULTANT’s behalf, is:
Mikhail Ogawa, Principal
731 S Highway 101, Suite 16
Solana Beach, CA 92075
Telephone No. (858) 987-4169
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 DocuSign Envelope ID: B27CD593-0E38-419B-929C-85B207B80FC6 Attachment 1
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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 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. Specifications by brand or trade names are prohibited except:
(1) when at least two are listed and “or equal” substitutions are permitted; (2) when necessary to match existing items in use on a specific public improvement; or (3) when a unique or novel product application is required; or when only one brand or trade name is known. The specifications must allow at least thirty-five (35) days after award of the contract for submission of data substantiating a contractor’s request for substitution of an equal form.
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.
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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 referenced in this AGREEMENT are incorporated into the AGREEMENT by this reference.
THE REMAINDER OF THIS PAGE LEFT BLANK.
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20. SIGNATURES
20.1 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, City Manager
By: ______________________________
Mikhail Ogawa, President
Date: _______________________________ Date: _______________________________
By: ______________________________
Kelly Ogawa, Vice President
Date: ____________________________
APPROVED AS TO CONTENT:
__________________________________________
Jim Newton, City Engineer Date
APPROVAL AS TO FORM:
__________________________________________
Johanna N. Canlas, City Attorney Date
ATTEST:
__________________________________________
Kelsea Holian, MMC, City Clerk Date
ATTACHMENT A ‒ SAMPLE TASK ORDER
ATTACHMENT B ‒ CONSULTANT CONFLICT OF INTEREST DETERMINATION ATTACHMENT C ‒ PAYMENT FOR SERVICES
ATTACHMENT D ‒ SCHEDULE OF SERVICES
ATTACHMENT E ‒ LISTING OF SUBCONSULTANTS
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February 7, 2024
Attachment 1
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ATTACHMENT A: SAMPLE TASK ORDER
CITY OF CORONADO
SAMPLE TASK ORDER: 24-MOE-0XX
Wastewater-Storm Drain Operations Management and NPDES Inspection Compliance Support Services
Contract No. 24-PS-ES-797
This task order hires to provide wastewater-storm drain operations management support and NPDES inspection compliance consulting services as described herein 24-MOE-XXX-A SCOPE OF SERVICES
24-MOE-XXX-B PAYMENT FOR SERVICES
24-MOE-XXX-C SCHEDULE OF SERVICES
24-MOE-XXX-D LISTING OF SUBCONSULTANTS
CITY: CONSULTANT:
By:
_____________________________
Tina Friend, City Manager
By: ______________________________
Mikhail Ogawa, President
By: ______________________________
Kelly Ogawa, Vice President
APPROVED AS TO CONTENT:
__________________________________________
Jim Newton, City Engineer Date
APPROVAL AS TO FORM:
__________________________________________
Johanna N. Canlas, City Attorney Date
ATTEST:
__________________________________________
Kelsea Holian, MMC, City Clerk Date
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CITY OF CORONADO
SAMPLE TASK ORDER: 24-MOE-XXX-A
Wastewater-Storm Drain Operations Management Support Services Contract No. 24-PS-ES-797
SCOPE OF SERVICES
This task order hires MOE to provide wastewater management support services, pursuant to the professional services agreement between the City of Coronado and, awarded by City Council on February 20, 2024.
Task 1. Wastewater Operations Program Support
Sub-Task 1.1: Municipal/Commercial FOG inspections
Municipal and Commercial FOG inspections Included in this task are annual food establishment inspections for an estimated 115 facilities at an average of two hours per facility and conducting Enhanced Program inspections estimated at 30 hours per year, as needed. Hotel Del Coronado inspections include oversight of the self-certification and submittal for FOG Program and quarterly spot inspections, total estimated at 46 hours. Inspections include correspondence, City meetings, inspections, coordination, data entry, enforcement letters, quality control, and project management. This task is estimated at a total of 370 hours.
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CITY OF CORONADO
SAMPLE TASK ORDER 24-MOE-XXX -B
Wastewater-Storm Drain Operations Management and NPDES Inspection Compliance Support Services
Contract No. 24-PS-ES-797
PAYMENT FOR SERVICES
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 task order. The original invoice shall be provided for any subcontracted services.
Normal processing time for payments is four (4) weeks.
For performance of each sub-task or portion thereof as identified in the sub-task authorization letter, CITY shall pay per the agreed upon compensation as stated therein.
The wastewater program fee table below lists task and sub-task fee shall not exceed $344,500.
Tasks Managed by Wastewater Program – Public Services
Description Fee Estimate
Task 1. Wastewater Operations
Commercial FOG Inspections $53,000
Engineering, Management, and Technical Support $31,300
SSMP Completion $9,300
CMC Update Support $11,000
Task 1 Subtotal $104,600
Task 2. NPDES Inspection Program and Support
Construction Inspections $178,200
Post-Construction Inspections $24,000
Commercial Inspections $23,000
Municipal Inspections $6,000
Other NPDES Inspections and Support $8,700
Task 2 Subtotal $239,900
WASTEWATER TOTAL $344,500
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CITY OF CORONADO
SAMPLE TASK ORDER: 24-MOE-XXX -C
Wastewater-Storm Drain Operations Management and NPDES Inspection Compliance Support Services
Contract No. 24-PS-ES-797
SCHEDULE OF SERVICES
CONSULTANT agrees to diligently pursue the work described. The schedule as described in the subtask authorization letters contractually obligates the CONSULTANT to perform all services to meet the time duration for each sub-task shown unless otherwise approved by CITY. The City will work with the CONSULTANT to identify the specific schedule for Task 2.
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CITY OF CORONADO
SAMPLE TASK ORDER: 24-MOE-XXX -D
Wastewater-Storm Drain Operations Management and NPDES Inspection Compliance Support Services
Contract No. 24-PS-ES-797
Listed below are any and all subconsultants and subcontractors which the CONSULTANT plans to employ under this AGREEMENT. No change is allowed without the prior approval of the Contract Officer.
SUBCONTRACTOR SUBCONTRACTOR
SUBCONTRACTOR SUBCONTRACTOR
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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. 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 local agency:
(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.
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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/CONTRACTOR 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 Department
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.
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ATTACHMENT C
Wastewater-Storm Drain Operations Management and NPDES Inspection Compliance Support Services
Contract No. 24-PS-ES-797
PAYMENT FOR SERVICES
A. FEES: CONSULTANT shall perform the DESCRIBED SERVICES on a time and materials basis based on the actual and reasonable time spent on the DESCRIBED SERVICES set forth in the Task Order(s) according to the following hourly rates:
Total payments for any given Task Order shall not exceed the not to exceed amount set forth in such Task Order and the cumulative payments under all Task Orders for all DESCRIBED SERVICES provided under the AGREEMENT, including professional fees and reimbursable expenses as set forth below. The hourly rates set forth above are not subject to increase during the term of the AGREEMENT.
B. PERSONNEL
1. MOE Rates
a. Personnel Costs
ENGINEERING SERVICES
Principal Engineer.......................................................$185.00 Senior Engineer............................................................ 160.00 Associate Engineer....................................................... 150.00 Assistant Engineer........................................................ 140.00 Student Engineer............................................................ 75.00
ENVIRONMENTAL SCIENTIST SERVICES
Principal Scientist........................................................$185.00 Senior Scientist............................................................. 160.00 Associate Scientist........................................................ 150.00 Assistant Scientist ........................................................ 140.00 Student Scientist............................................................. 75.00
ADMINISTRATIVE SERVICES
Administrative Professional ......................................... $85.00 b. Expenses
In addition, identifiable non-salary coststhat are directly attributable to the projectsuch asreproduction costs, postage, etc., are billed at actual cost plus 7 percent.
Feesforsubconsultantservices provided are billed at actual cost plus 7 percent to cover overhead and administration. In addition, identifiable non-salary costs that are directly attributable to the project such as reproduction costs, postage, etc., are billed at actual cost plus 7 percent. Mileage is billed at current IRS rate at time of service.
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2. C. PAYMENTS: Payments to the CONSULTANT for the DESCRIBED SERVICES shall be made in the form of monthly payments due for each sub-task as set forth on the Word Order(s) on a time and materials basis based on the actual and reasonable time spent by CONSULTANT in performing the sub-task(s) on the Task Order(s), the CONSULTANT’s hourly rates as set forth above, and the reimbursable expenses set forth above. No services will be invoiced or paid until the sub-task(s) has been completed as set forth in a given Task Order. All invoices submitted by the CONSULTANT shall show an hourly reconciliation of time spent on each sub-task and will be billed against the relevant Task Order. The original invoice shall be provided for any subcontracted services. Normal processing time for payments is four (4) weeks.
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ATTACHMENT D
Wastewater-Storm Drain Operations Management and NPDES Inspection Compliance Support Services
Contract No. 24-PS-ES-797
SCHEDULE OF SERVICES
PROJECT SCHEDULE – The Project Schedule shall be appended here.
CONSULTANT agrees to diligently pursue the work described. The following schedule contractually obligates the CONSULTANT to perform all services to meet the time duration for each Phase of work shown:
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ATTACHMENT E
Wastewater-Storm Drain Operations Management and NPDES Inspection Compliance Support Services
Contract No. 24-PS-ES-797
LISTING OF SUBCONSULTANTS
Listed below are any and all SUBCONSULTANTS that the CONSULTANT plans to employ under this AGREEMENT. Include DIR Contractor Registration Numbers where applicable. No change is allowed without the prior approval of the CONTRACT OFFICER.
SUBCONSULTANT SUBCONSULTANT
West Coast Civil
9740 Appaloosa Road Ste 200
San Diego, CA 92131
SAGE Environmental Consulting LLC
7815 Segovia Way
Carlsbad CA 92009
SUBCONSULTANT
Compass Rose GIS
4140 Oceanside Blvd
Oceanside, CA 92056
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