Agenda Item D.9
CPMS CONSENT CALENDAR
Meeting Date: December 20, 2022
TO: Mayor and Councilmembers
FROM: Matthew R. Fore, General Services Director
SUBJECT: Award of Construction Management and Inspection Services Contract to MNS Engineers Inc. for the Goleta Community Center Seismic Improvement Project (DR 4308, CIP 9067)
RECOMMENDATION:
Award and authorize the City Manager to execute a Professional Services Agreement with MNS Engineers, Inc. for Construction Management and Inspection services in the base amount of $204,658, which assumes a 90-day construction period, and approve additional expenditures of up to $162,408 to accommodate a construction period of up to 180 days, for a total not -to-exceed amount of $347,066, with a termination date of September 30, 2023.
BACKGROUND:
Over the years, Council has considered issues related to the state and status of the Goleta Community Center (GCC). At its August 31, 2021 meeting, City Council received a report on the status of the Goleta Community Center facility and the approved Goleta Community Center Improvements Capital Project to complete a seismic retrofit and related Americans with Disabilities Act access upgrades. The agenda report for this August 31st item provides extensive history and background information on the site and structures.1
On September 20, 2022, Council approved the Approve Plans for the Goleta Valley Community Center Seismic Retrofit Project (Project) and authorized Staff to advertise a Notice Inviting Bids for the project.
DISCUSSION:
The bid solicitation for the Project commenced on November 9, 2022. The Notice Inviting Bids was published in the Santa Barbara Independent on November 10 and November 17, 2022, respectively. The bid specifications and plans were also posted on the City’s website. Staff anticipates that construction will commence in Winter of 2023. 1 The August 31, 2021, Council Agenda Report is available at https://tinyurl.com/y4ahz9tn 1 Meeting Date: December 20, 2022
Construction Management
Staff selected MNS Engineers , Inc. (MNS) to provide construction management services for the project. MNS was selected from the City’s pre -authorized qualified consultant list that was established through a Request for Qualifications (RFQ) process and approved by City Council on December 3, 2019. Staff have negotiated a scope of work for the proposed project construction management services and MNS is qualified to perform the work. Therefore, staff is recommending that Council award and authorize the City Manager to execute a professional services agreement with MNS Engineers, Inc. in a total not-to-exceed amount of $347,066 (Attachment 1).
The contract amount is comprised of a base amount of $204,658 , which assumes a 90-day construction period , and change order authority of $ 162,408 should the construction period extend to 180 days. This contingency is based upon the engineer’s cost estimate, which contemplated a possible longer construction period due to continued supply chain delays, additional asbestos remediation, and unforeseen issues that may arise during construction on a historic building.
FISCAL IMPACTS:
Sufficient budget exists in the construction component of CIP No. 9067 to cover the cost of construction management and inspection services set forth in the proposed contract.
Therefore, staff is not requesting additional appropriations with this Council action.
ALTERNATIVES:
The City Council may elect to not approve the Construction Management and Inspection Services Contract with MNS Engineers Inc. Doi ng so would delay the construction of the project and could jeopardize grant funding timelines.
Reviewed By: Legal Review By: Approved By:
___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager
ATTACHMENTS:
1. Agreement for Professional Construction Management and Inspection Services between the City of Goleta and MNS Engineers
2 ATTACHMENT 1
Agreement for Professional Construction Management and Inspection Services between the City of Goleta and MNS Engineers
3 City of Goleta
Public Works and MNS Engineers Inc.
Project Name: Goleta Valley Community Center Seismic Retrofit Project
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF GOLETA
AND
MNS ENGINEERS INC.
This AGREEMENT FOR PROFESSIONAL SERVICES (herein referred to as “AGREEMENT”) is made and entered into this ___day of December, 2022, by and between the CITY OF GOLETA, a municipal corporation (herein referred to as " CITY"), and MNS ENGINEERS INC., a California Corporation (herein referred to as "CONSULTANT").
SECTION A. RECITALS
1. The CITY has a need for professional Construction Management and Inspection services for Goleta Valley Community Center Seismic Retrofit Project DR 4308 (CIP 9067); and
2. The CITY does not have the personnel able and/or available to perform the services required under this AGREEMENT, and therefore, the CITY desires to contract for professional services to accomplish this work; and
3. The CITY procured these services in compliance with Goleta Municipal Code Section 3.05.260.
4. The City Council, on this ___ day of December, 2022, approved this AGREEMENT and authorized the City Manager to execute the AGREEMENT.
SECTION B. TERMS
1. RETENTION AS CONSULTANT
CITY hereby retains CONSULTANT, and CONSULTANT hereby accepts such engagement, to perform the services described in Section 2 .
CONSULTANT warrants it has the qualifications, experience, and facilities to properly and timely perform said services.
2. DESCRIPTION OF SERVICES
The services to be performed by CONSULTANT (the “Services”) are as follows:
Professional Construction and Ins pection Services in conjunction with Goleta Valley Community Center Seismic Retrofit Project Services shall generally include project plans and specification review, managing pre -construction conference, project
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communication and coordination, submittals, RFIs response, and contract change order management as more particularly set forth in the Scope of Work, attached as Exhibit “A,” and incorporated herein.
CONSULTANT shall deliver to CITY the deliverables defined in Exhibit “A.”
3. COMPENSATION AND PAYMENT
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $347,066 (herein the "Not to Exceed Amount "), which includes a base compensation amount of $204,6 58, which assumes a 90-day construction period and additional contingency of $162,408 to accommodate a construction period of up to 180 days, and shall be earned as the work progresses on the following basis:
Hourly at the hourly rates and with reimburseme nt to
CONSULTANT for those expenses set forth in CONSULTANT's Schedule of Fees marked Exhibit "B," attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONSULTANT until September 30, 2023, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT for all work described under this AGREEMENT.
(b) Payment. CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification shall be in a form satisfactory to CITY's Project Manager , as described in Sectio n 5 .
Invoices shall be made no more frequently than on a monthly basis, and shall describe the work performed (including , but not limited to, a list of hours worked by personnel classification). All payments shall be made within 30 days after CITY’s approval of the invoice.
4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY authorized extra services, not reasonably included within the services described in Section 2, as mutually agreed to writing in advance of the incurrence of extra services by CONSULTANT. Unless CITY and CONSULTANT have agreed in writing before the performance of extra services, no liability and no right to claim compensation for such extra services or expenses shall exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit B, if one is included as part of this agreement . Any compensation for extra services shall be part of the total compensation and shall not increase the Not to Exceed Amount identified in Section 3.
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5. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be accomplished under the general direction of, and in coordination with, CITY's "Project Manager," as that staff person is designated by CITY from time to time, and who presently is Matthew R. Fore. The Project Manager shall have the authority to act on behalf of the CITY in administering this AGREEMENT but shall not be authorized to extend the Term of the AGREEMENT or increase the Not to Exceed Amount.
6. TERM, PROGRESS AND COMPLETION
The term of this AGREEMENT (the “Term”) is from the date first written above until September 30, 2023, unless extended or terminated as provided for herein.
CONSULTANT shall not commence work on the services to be performed until (i) CONSULTANT furnishes proof of insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY's Project Manager.
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports , and other documentation, including duplication of same prepared by CONSULTANT in the performance of this AGREEMENT , are the property of CITY. CITY shall be entitled to immediate possession of the same upon completion of the work under this AGREEMENT, or at any earlier or later time when requested by CITY.
8. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY. Greg Chelini, PE, Principal Construction Manager is deemed to be specially experienced and is a key member of CONSULTANT's firm, and shall be directly involved in the performance of the Services . This key person shall communicate with, and periodically report to, CITY on the progress of the Services. Should this individual’s employment with CONSULTANT or ability to perform the Service s be terminated, limited, or suspended for any reason, CITY may terminate this AGREEMENT. This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
9. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmles s for CONSULTANT's Damages. CONSULTANT holds CITY, its elected officials, officers, agents, and employees, harmless from all of CONSULTANT's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to CONSULTANT, to CONSULTANT's employ ees, to CONSULTANT’s contractors or subcontractors, or to the owners of CONSULTANT's firm, which damages, losses, injuries or liability occur as a DocuSign Envelope ID: EE0F7EA1-D958-4F03-A4BB-FDA4541AF4F2 6 City of Goleta
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result, direct or indirect, of the performance of this AGREEMENT, or occur whil e CONSULTANT and/or its officers, employees, agen ts, contractors, subcontractors, subconsultants, or representatives are on CITY property, or which are connected, directly or indirectly, with CONSULTANT's performance of any activity or work under this AGREEMENT. CONSULTANT’s duty to indemnify and hold ha rmless CITY under this section shall survive the termination of this AGREEMENT.
(b) Defense and Indemnity of Third Party Claims/Liability.
CONSULTANT shall investigate, defend, and indemnify CITY, it s elected officials, officers, agents, employees, and volunteers from any claims, lawsuits, demands, judgments, and all liability including, but not limited to, monetary or property damage, lost profit, personal injury, wrongful death, general liabilit y, automobile, infringement of copyright/patent/trademark, or pr ofessional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, sub consultants, or subcontractors, or the willful misconduct of CON SULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, in the performance of this AGREEMENT. The duty to defend shall include any suits or actions concerning any activity, product , or work required under this AGREEMENT, and also include the payment of all court costs, attorney s’ fees, expert wi tness costs, investigation costs, claims adjusting costs and any other costs required for and related thereto. CONSULTANT’s duty to indemnify and hold harmless CITY under this section shall survive the termination of this AGREEMENT.
(c) No Waiver. CITY does not waive, nor shall be CITY be deemed to have waived, any indemnity, defense , or hold harmless rights under this section because of the acceptance by CITY, or the deposit with CITY, of any insurance certificates or policies described in Section 10.
10. INSURANCE
CONSULTANT shall, at CONSULTANT's sole cost and expense , provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating of A - or better, Class VII or better, or as otherwise approved by CITY.
Insurance shall include the following (or broader) coverage:
a) Insurance Services Office Commercial Liability coverage “occurrence” form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate.
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b) Insurance Services Office form number CA 00 01 or equivalent covering Automobile Liability, including hired and non -owned automobile liability with a minimum limit of $1,000,000 per accident. If the Service Provider owns no vehicles, this requirement may be satisfied by a non -owned and hired auto endorsement to Service Provider’s commercial general liability policy.
c) Workers’ Compensation insurance complying with C alifornia worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 per accident or disease.
d) Professional liability insurance that covers the services to be performed in connection with this agreement, in the minimum amount of $1,000,000 per claim.
Liability insurance policies required to be provided by CONSULTANT hereunder shall contain or be endorsed to contain the following provisions:
a) Except for professional liability insurance , CITY, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising ou t of the work performed or related to the contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10, with an edition date prior to 20 04, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37, or its equivalent. b) General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance policies inception date, continuity date, or retroactive date m ust be before the effective date of this agreement. CONSULTANT agrees to maintain continuous cove rage through a period no less than three years after completion of the services required by this agreement.
d) Except for professional liability insurance, l iability coverage shall be primary and non-contributing with any insurance maintained by CITY. e) Evidence of coverage (including the workers’ compensation and employer’s liability policies) shall provide that coverage shall not be suspended, voided, cancele d or reduced in coverage or in limits except after 30 days’ prior written notice has been given t o CITY.
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Such provision shall not include any limitation of liability of the insurer for failure to provide such notice.
f) No liability insurance coverage pro vided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT’s
employees, or agen ts, from waiving the right of recovery prior to a loss. CONSULTANT waives its right of recovery against CITY. g) CONSULTANT agrees to deposit with CITY within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) There shall be no recourse against CITY for payment of premiums or other amounts with respect to the insurance required to be provided by CONSULTANT hereunder. Any failure, actual or alleged, on the part of CITY to monitor compliance with these r equirements will not be deemed as a waiver of any rights on the part of CITY. CITY has no additional obligations by virtue of requiring the insurance set fort h herein. In the event any policy of insurance required under this AGREEMENT does not comply wit h these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONSULTANT or CITY will withhold amounts sufficient to pay prem ium from CONSULTANT payments.
i) CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this AGREEMENT. CITY assumes no obligation or liability by such notice, but has the righ t (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY.
11. RELATIONSHIP OF CONSULTANT TO CITY
The relations hip of the CONSULTANT to CITY shall be that of an independent contractor and that in no event sha ll CONSULTANT be considered an officer, agent, servant , or employee of CITY. CONSULTANT shall be solely responsible for any workers compensation insurance, wi thholding taxes, unemployment insurance, and any other employer obligations associated with CONTRACTOR’s performance of this AGREEMENT. The parties agree that they would not have entered into this AGREEMENT if it would have created an employer-employee relationship between CITY and CONTRACTOR.
12. CORRECTIONS
In addition to the above in demnification obligations, CONSULTANT shall timely correct, at its expense, all errors in the work performed under this DocuSign Envelope ID: EE0F7EA1-D958-4F03-A4BB-FDA4541AF4F2 9 City of Goleta
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AGREEMENT upon discovery of the errors or upon notice fro m CITY of the same. Should CONSULTANT fail to make such correction s in a reasonably timely manner, such corrections may be made by CITY or a third party of CITY’s choosing, and the cost thereof shall be charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION
CITY, by notifying CONSULTANT in writing, may, upon 10 calendar days’ notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If termination by CITY is for caus e, no notice period need be given. In the event of termination, CONSULTANT shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following submission of a final statement by CONSULTANT unless termination is for cause. In such event, CONSULTANT shall be compensated only to the extent required by law.
CONSULTANT, by notifying CITY in writing , may, upon 60 calendar days ’ notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If CONSUL TANT terminates for cause, CONSULTANT shall provide at least 20 calendar days’ written notice to CITY of its intent to terminate for cause and CITY shall have the opportunity to meet and confer with CONSULTANT in order to address and cure the perceive d breach, if any.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The City’s payment of the last 10 percent of the Not to Exceed Amount shall constitute Final Payment of the AGREEMENT. The acceptance by CONSULTANT of the Final Payment made under this AGREEMENT shall operate as and be a release of CITY from all claim s and liabilities for compensation to CONSULTANT for anything done, furnished, or relating to CONSULTANT'S work or services , and those of its agents, employees, contractors, subcontractors, su bconsultants, and officers under this AGREEMENT. Acceptance of payment shall be any negotiation of CITY's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check. However, approval or payment b y CITY shall not constitute, nor be deemed, a release of the re sponsibility and liability of CONSULTANT, its officers, employees, contractors, subcontractors, agents and subconsultants for the accuracy and competency of the information provided and/or work performed under this AGREEMENT ; nor shall such app roval or payment b e deemed to be an assumption of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT, its officers, employees, contractors, subcontractors, agents, and subconsultants.
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15. AUDIT OF RECORDS
At an y time during norm al business hours and as often as CITY may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with respect to all matters cover ed by this AGREEMENT and will permit CITY to audi t, examine , and/or r eproduce such records. CONSULTANT will retain such records, including but not limited to financial records, time sheets, work progress reports, invoices, bills , and project records, for two years after termination or Final Payment under this AGREEMENT.
16. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such pa rty's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other d efault or breach, or cover any other period of tim e, other than any default or b reach and/or period of time specified. All of the remedies permitted or available to a party under this AGREEMENT, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or ele ction of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT warrants and represents that it has no knowledge of any CITY employee or official that has a financ ial interest in CONSULTANT'S business. During the term of this AGREEMENT and/or as a result of being awarded this AGREEMENT, CONSULTANT shall not offer, encourage, or accept any financial interest in CONSULTANT'S business to, from, or by any CITY employee or official. The parties each warrant and represent that this AGREEMENT and all Services to be performed under this AGREEMENT were procured pursuant to a fair, competitive selection process prohibiting government agency employees with a financial or busi ness relationship with CONSULTANT from participating in the selection process.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shall be construed as a whole according to their common meaning with the purpose of providing a pu blic benefit, and not strictly for or against a ny party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties. Wherever required by the context, the s ingular shall include the plural DocuSign Envelope ID: EE0F7EA1-D958-4F03-A4BB-FDA4541AF4F2 11 City of Goleta
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and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
20. GOVERNING LAW
This AGREEMENT, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venu e shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
CONSULTANT shall not discriminate on the basis of race, color, gender, gender identity/expression, pregnancy, sexual orientation, disability, marital status, or any other characteristic protected under applicable federal or state law.
22. TAXPAYER IDENTIFICATION NUMBER
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, Form W -9 (Rev. October 2018 ), as issued by the Internal Revenue Service.
23. NON-APPROPRIATION OF FUNDS
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shall cover only those costs incurred up to the conclusion of the current fiscal year.
24. MODIFICATION OF AGREEMENT
This AGREEMENT may be modified only upon mutua l written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “ CITY” in this AGREEMENT includes the City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licens es, and certificates that DocuSign Envelope ID: EE0F7EA1-D958-4F03-A4BB-FDA4541AF4F2 12 City of Goleta
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may be required in connection with the performance of services under this AGREEMENT.
27. CAPTIONS
The captions or headin gs in this AGREEMENT are for conv enience only and in no other way define, limit , or describe the scope or intent of any provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authorized the execution of this AGREEMENT on its behalf and bind said party and its respe ctive administrators, officers, directors, shareholders, divisions, subsidiaries , agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers , and any others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT's proposals and submitted representation s for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, either oral or in writing, between the parties hereto with res pect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services.
30. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void , or unenforceable, the remaining pr ovisions will nevertheless continue in full force without being impaired or inva lidated in any way.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the Uni ted States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Robert Nisbet, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attention: Greg Chelini
PE, Principal Construction Manager
MNS Engineers Inc.
201 N. Calle Cesar Chavez, Suite 300
Santa Barbara, CA 93103
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32. COUNTERPARTS AND ELECTRONIC/FACSIMILE SIGNATURES
This Agreement may be executed in several counterparts, which may be facsimile or electronic copies. Each counterpart is fully effective as an original, and together constitutes one and the same instrument.
33. FEDERAL REQUIREMENTS
FEMA financial assistan ce will be used to fund all or a portion of this contract.
The Consultant shall comply with all federal requirements including, but not limited to, the following:
1. 2 C.F.R. P art 200 – Uniform Administrative Requirements, Cost Principles,
and Audit Require ments for Federal Awards, which is expressly incorporated herein by reference.
2. Federal Contract Provisions attached hereto as Exhibit “C” and incorporated herein by reference.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the contract, including but not limited to, 2 C.F.R.
Part 200 and the Federal Contract Provisions.
With respect to any conflict between such fed eral requirements and the terms of this contract and/or the provisions of state la w and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
In concurrence and witness whereof, this AGREEMENT has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
_____________________________ _____________________________ Robert Nisbet, City Manager By: Greg Chelini, Vice President
ATTEST
_____________________________ _____________________________ Deborah Lopez, City Clerk By: Miranda Patton, Vice President
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APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
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EXHIBIT A
SCOPE OF WORK
TASK 1.0 PRE-CONSTRUCTION PHASE SERVICES
Kick-off Meeting – The Consultant shall work with City staff to review procedures , establish a roles and responsibi lities matrix, and review and verify mutual understanding of contract documents and construction issues.
Review Design Documents – The Consultant shall review design documents for constructability.
Contract Administration – The Consultant shall establish d ocument control procedures and Construction Management procedures to ensure organized, complete, and effective construction management and documentation at the onset and throughout the project duration.
Preconstruction Conference – The Consultant shall prepare an agenda, chair the briefing, and prepare minutes documenting the meeting he ld with Owner, Engineer, Contractor, Construction Manager, and other pertinent parties prior to construction.
Preconstruction Condition Docu mentation – The Consultant shall d igitally photograph and video graph the site and adjoining area in the pre -construction condition.
PRECONSTRUCTION PHASE DELIVERABLES:
a. Preconstruction Meeting Agenda and Minute
b. Preconstruction Condition Documentation
TASK 2. CONSTRUCTION PHASE SERVICES
Project Communication and Coordination – The Consultant shall keep logs, files, correspondence, agendas, minutes, and other documents as necessary to assure dissemination of information, as well as the ability to locate docu ments in the future.
MNS will use CMIS or similar cloud-based system for document control.
Project Schedule – The Consultant shall review Contractor’s baseline schedule and monthly schedule updates for compliance.
Submittal Management – The Consultant shal l coordinate, log, and distribute submittals (e.g. shop drawings, color samples, product “cut sheets”, and other information) to the Engineer or appropriate reviewer. Copies of the submittal log will be included with each weekly coordination meeting’s agenda/minutes, and Consultant shall follow up to assure appropriate and timely response by the Engineer.
RFI Management – The Consultant shall maintain a log system for Requests for Information. Within the Construction Manager’s authority responses shall be m ade in the field and logged accord ingly. Otherwise, responses shall be facilitated by the appropriate person(s) so that no unwarranted delays are experienced.
Materials Management – The Consultant shall verify that the material incorporated into the projec t are in accordance with the contr act documents and approved submittals.
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Change Order Management – The Consultant sh all establish a Potential Change Order (PCO) process and shall track all items and issues that are likely to result in change orders. A log shall be established indicating the type of each PCO, the potential impacts to cost, schedule, and other matters. The log shall be attached to weekly meeting agenda/minutes and shall be reviewed in the weekly meetings. Consultant shall review all Contracto r Requests for Change Orders, to d etermine whether appropriate procedure has been followed and the necessary information has been provided. Requests shall be logged and distributed to the City, with documentation as necessary such as inspection reports, sk etches, photos or other materials necessary for evaluation. Consultant shall make a recommendation as to the disposition of each change order request. Upon City review and determination, Consultant shall prepare Change Orders for signature by City staff us ing the City’s template, obtain Co ntractor signature, and facilitate approval by the City and distribution thereafter.
Construction Observation/Inspection – The Consultant shall perform daily inspection/monitoring of construction activities and determine that work follows the project plans, specifications, and permits. The Inspector’s Daily Reports shall include information such as workers and equipment actively engaged in the project, weather conditions, work accomplished that day, records of T&M work perf ormed, pictures, documentation of conversations with Contractor personnel, and problems anticipated or encountered.
Materials Testing – The Consultant shall perform as needed materials testing. MNS will coordinate with NV5, materials testing sub consultant, on testing needs.
Safety –Contractor shall remain the sole responsible party for safety requirements.
Consultant will notify Contractor and City of any observed deficiencies per CAL-OSHA or Contractor’s safety program.
Jobsite Weekly Progress Meetings – The Consultant shall prepare agendas and minutes, along with other pertinent information. Agendas/ minutes shall be distributed through the contract administration system. Minutes shall be clear in assigning responsibility and timeframes for action items.
Payment Application Review – The Consultant shall review the Contractor’s progress pay estimates in accordance with the construction contract. Payments on progress estimates shall be supported by source documents that represent measured quantities.
A complete and accurate pay estimate shal l be forwarded to the City for payment.
Consultant shall maintain a current estimate of overall construction costs.
CONSTRUCTION PHASE DELIVERABLES:
a. Weekly Meeting Agendas & Minutes
b. Submittal Log
c. RFI Log
d. CCO Log
e. PCO log
f. Materials Testing Log and Reports
g. Weekly Statements of Working Days
h. Daily Inspection Reports
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i. Organize & Assemble Documentation for Closeout
TASK 3. POST-CONSTRUCTION PHASE SERVICES
Final Inspection and Punch List – The Consultant shall provide final inspection and prepare list of project construction deficiencies for resolution by Contractor.
Record Drawings – The Consultant shall provide final mark-ups of the project drawings to reflect Contractor provided as -built drawings and all changes made to the contr act documents for preparation of final record drawings by the designer.
Final Documentation Turnover – The Consultant shall provide the City with all project documentation.
Notice of Completion – Upon completion of all punch list items, Consultant shall prepare a Notice of Completion and any final documentation requested by the City. Thereafter, the Contractor’s final payment shall be processed.
CLOSE-OUT PHASE DELIVERABLES:
a. Record Drawings
b. Final Punchlist
c. Electronic copy of all Project Files
d. Notice of Completion Statement of Final Quantities
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EXHIBIT B
SCHEDULE OF FEES
Assuming 90 calendar day construction period:
Assuming 180 calendar day construction period:
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EXHIBIT C
FEDERAL CONTRACT PROVISIONS
During the performance of t his contract, MNS ENGINEERS INC. (the “Consultant”) shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit. In this Exhibit, the term “Agency” shall mean the local agency e ntering into this contract with the Consultant.
1. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S
BUSINESS ENTERPR ISE AND LABOR SURPLUS AREA FIRMS (2
C.F.R. § 200.321)
A. Consultant shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women ’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award.
B. Affirmative steps shall include:
i. Placing qualified small and minority businesses and
women's business enterprises on solicitation lists;
ii. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are
potential sources;
iii. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business
enterprises;
iv. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and
v. Using the s ervices/assistance of the Small Business Administration (SBA), and the Minority Business
Development Agency (MBDA) of the Department of
Commerce.
Consultant shall submit evi dence of compliance with the foregoing affirmative steps when requested by the Agency.
Notwithstanding the foregoing, the affirmative steps requirements detailed above do not apply in the case of a noncompetitive procureme nt made under the emergency excep tion/exigency exception to competitive procurements.
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2. COST PRINCIPLES (2 C.F.R. PART 200, SUBPART E)
A. If any indirect costs will be charged to the Agency under this contract, such costs must conform to the cost principles set forth under the Uniform Rules at 2 C.F.R. Part 200, subpart E (“Cost Principles”). In general, costs must (i) be necessary and reasonable; (ii) allocable to the grant award; (iii) conform to any limitations or exclusions set forth in the Cost Principle s; (iv) be adequately documented; and (v) be determined in accordance with generally accepted accounting principles (“GAAP”), except, for state and local governments and Indian tribes only, as otherwise provided for in 2 C.F.R. Part 200, subpart E. 2 C.F. R. § 200.403.
Costs that are det ermined unallowable pursuant to a federal audit are subject to repayment by Consultant.
3. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336)
A. Consultant shall comply with 2 C.F.R. § 200.336 and provide the Federal Agenc y, Inspectors General, the Comptr oller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinent to this contract for the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Consultant personnel for the purpose of interview and discussion related to the books and records.
B. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever o r to copy excerpts and transcriptions as reasonably needed.
C. The Consultant agrees to provide the Federal Agency or its authorized represent atives access to construction or other work sites pertaining to the work being completed under the contract.
4. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH
APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON - FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARD S (2
C.F.R. § 200.326)
A. Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. If the contract is in excess of $10,000 and the contract does not include provisions for both termination for cause and termination for convenience b y DocuSign Envelope ID: EE0F7EA1-D958-4F03-A4BB-FDA4541AF4F2 21 City of Goleta
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the Agency, including the manner by which it will be effected and the basis for settlement, then the following termination clauses shall apply. If the contract is for more than the simplified acquisition threshold (see 2 C.F.R. § 200.88) at the time the contract is executed and does not provide for administrative, contractual, or legal remedies in instances where Contractor violates or breaches the terms of the contract, then the following termination clauses shall apply and have precedence over the cont ract. Otherwise, the following termination clauses shall not be applicable to the contract.
i. Termination for Convenience. The Agency may, by written notice to Consultant, terminate this contract for convenience, in whol e or in part, at any time by givi ng written notice to Consultant of such termination, and specifying the effective date thereof (“Notice of Termination for Convenience”). If the termination is for the convenience of the Agency, the Agency shall compensate Provider for work or materials fully and adequately provided through the effective date of
termination. No amount s hall be paid for unperformed work or materials not provided, including anticipated profit.
Consultant shall provide documentation deemed ade quate by the Agency to show the w ork actually completed or
materials provided by Consultant prior to the effective date of termination. This contract shall terminate on the effective date of the Notice of Termination.
ii. Termination for Cause. If Consultant fails to perform pursuant to the terms of this contract, the Agency shall provide written notice to Consultant specifying the default (“Notice of Default”). If Consultant does not cure such default within ten (10) calendar days of receipt of Notice of Default, the Agency may terminate this contract for cause. If Consultant fails to cure a default as set forth above, the Agency may, by written notice to Consultant , terminate this contract for cause, in whole or in part, and specifying the effective date thereof (“Notice of Termination f or Cause”). If the termination is for cause, Consultant shall be
compensated for t hat portion of the work or materials
provided which has been fully and adequately completed
and accepted by the Agency as of the date the Ag ency
provides the Notice of Termination. In such case, the Agency shall have the right to take whatever steps it dee ms
necessary to complete the project and correct Consultant’s deficiencies and charge the cost thereof to Consultant, who DocuSign Envelope ID: EE0F7EA1-D958-4F03-A4BB-FDA4541AF4F2 22 City of Goleta
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shall be liable fo r the full cost of the Agency's c orrective action, including reasonable overhead, profit and attorneys' fees.
iii. Reimbursement; Damages. The Agency shall be entitled to reimbursement for any compensation paid in excess of work rendered or materials provide d and shall be entitled to withhold compensation for defective work or other damages caused by Consultant performance of the work.
iv. Additional Termination Provisions. Upon receipt of a Notice of Termination, either for cause or for convenience,
Consultant shall promptly discontinue the work unless the Notice directs to the contrary. Consultant shall deliver to the Agency and transfer title (if necessary) to all provided materials and completed work, and work in progress
including drafts, documents, plans , forms, maps, products, graphics, computer programs and reports. The rights and remedies of the parties provided i n this Section are in addition to any other rights and remedies provided by law or under this contract. Consultant acknowledges the Agency’s right to terminate this contract with or without cause as provided in this Section, and hereby waives any and all claims for damages that might arise from the Agency’s
termination of this contract. The Agency shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperfo rmed work or materials not provided and shall not be entitled to damages or compensation for termination of work or supply of materials. If Agency terminates this contract for cause, and it is later determined that the termination for cause was wrongful, the termination shall automatically be converted to and treated as a
termination for convenience. In such event, Consultant shall be entitl ed to receive only the amounts pa yable under this Section, and Consultant specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits. The rights and remedies of the Age ncy provided in this Section shal l not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this contract including, but not limited to, the right to specific performance.
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B. Appendix II to Part 200 (C) – Equal E mployment Opportunity:
Except as otherwise provided under 41 C.F.R. Part 60, Consultant shall comply with the follow ing equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as ame nded by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
i. Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Consultant will take affirmative action to insure that applicants are employed and that employees are treated equally during employment, without regard to race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the followi ng: employment upgrading, demotio n, 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 appli cants for
employment, notices to be provided by the Agency setting forth the provisions of this nondiscrimination clause.
ii. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant , state that all qualifie d applicants will receive consideration for employment without regard to their race , color, religion, sex, or national origin.
iii. Consultant will not discharge or in any other manner discriminate against any employee or appli cant for
employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
This provision shall not apply to instances in which an employee who has acce ss to the compensation informatio n of other employees or applicants as a part of such
employee's essential job funct ions discloses the
compensation of such other employees or applicants to
individuals who do not otherwise have access to such
information, u nless such disclosure is in respo nse to a formal complaint or charge, in furtherance of an
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investigation conducted by the employer, or is consistent with Consultant‘s legal duty to furnish information.
iv. Consultant will send to ea ch labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contr actor's commitments under Section 202 of Executive Order No. 11246 of
September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
v. Consultant will comply with all provisions of Executi ve Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
vi. Consultant will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulati ons, and orders of the Secretary of Labor, or pursuant thereto, and will permit acc ess to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
vii. In the event of Consultant’s noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or suspended in w hole or in part and the
contractor may be declared ineligible for further Government contracts in accordance with pr ocedures authorized in
Executive Order No.11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as
provided in Executive Order No.11246 of Se ptember 24,
1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
viii. Consultant will include the provisions of paragraphs (i) through (viii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24,1965, so that such provisions will be binding upon each subcontractor or Consultant. Consultant will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor DocuSign Envelope ID: EE0F7EA1-D958-4F03-A4BB-FDA4541AF4F2 25 City of Goleta
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as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event Consultant becomes involved in, or is threatened with,
litigation with a subcontractor or Consultant as a result of such direction, Consultant may request the United States to enter into such litigation to protect the interests of the United States.
C. Appendix II to Part 200 (D) – Davis-Bacon Act; Copeland Act: Not applicable to this contract.
D. Appendix II to Part 200 (E) – Contract Work Hours and Saf ety Standards Act:
i. If this contract is in excess of $100,000 and involves the employment of mechanics or laborers, Consultant shall
comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S. C. 3702, each contractor must be required to
compute the wages of every mechanic and laborer on the
basis of a standard work week of 40 hour s. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S .C. 3704 are applicable to constr uction work and provide that no laborer or mechanic must be required to work in sur roundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
ii. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employmen t of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she i s employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate no t less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
iii. In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor and any
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subcontractor respons ible therefor shall be liable for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territ ory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or m echanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which suc h individual was required or permitted to work in excess of the standard workweek o f forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
iv. The Agency shall up on its own action or upon written request of an authorized representative of the Department of Labor withhold or cau se to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any ot her Federal contract with the sam e prime contractor, or any other
federally-assisted contract subject to the Contrac t Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such contract or or subcontractor for unpaid wages and liquidated damages as provided in the clau se set forth in paragraph (iii) of this section.
v. The Consultant or subcontractor shall insert in any
subcontracts the clauses set forth i n paragraph (ii) through (v) of t his Section and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for
compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section.
E. Appendix II to Part 200 (F) – Rights to Inventi ons Made Under a Contract or Agreement:
i. If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and th e non-Federal entity wishes to en ter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental,
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developmental, or research work under that “funding
agreement,” the non-Federal entity must comply wi th the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit O rganizations and Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements), and any implementing regulations issue d by the Agency.
ii. The regulatio n at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, gr ant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, dev elopmental, or
research work funded in whole or in part by the Federal government. This term also includes any assignment,
substitution of parties, or subcontract of any type entered into for the performance of experimental , developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.
iii. This requirement does not apply to the Public Assistance, Hazard Mitigation Grant Program, Fire Management
Assistance Grant Program, Crisis C ounseling Assistance and Training Grant Program, Disaster Case Management
Grant Program, and Federal Assistance to I ndividuals and Households – Other Needs Assistance Grant Program, as
FEMA awards under these programs do not meet the
definition of “funding agreement.”
F. Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this contract is in excess of $150,000, Consultant shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).
i. Pursuant t o the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the Agency and understan ds and agrees that the Agency will, in turn, report each violation as required to assure notification to the Federal awarding agency and the
appropriate Environmental Protec tion Agency Regional
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Office, and (3) Consultant agrees to include these
requirements in each subcontract exceeding $150,000.
ii. Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all a pplicable standards, orders or re gulations issued pursuant to the Federal Water Pollution Control Act, as amended, 3 3 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the Agency and understands and agrees that the Agency will, in turn , report each violation as requir ed to assure notification to the Federal awarding agency and the appropriate Enviro nmental Protection Agency Regional Office, and (3) Consultant
agrees to include these requirements in each subcontract exceeding $150,000.
G. Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made t o parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orde rs 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as w ell as parties declared ineligibl e under statutory or regulatory authority other than Executive Order 12549.
i. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that non e of the Consultant, its principa ls (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.90 5) are excluded (defined at 2 C.F.R. §
180.940) or disqualified (defined at 2 C.F.R. § 180.935).
ii. Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in an y lower tier covered transaction it enters into.
iii. This certification is a material representation of fact relied upon by Agency. If it is lat er determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in a ddition to remedies available to the Agency, the Federal Government may pursue available
remedies, including but not limited to suspension a nd/or debarment.
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iv. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible f or participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this contract are n ot debarred, disqualified, or oth erwise prohibited from
participation in accordance with the requirements above .
Consultant further agrees to notify the Agency in writing immediately if Consultant or its subcontractors are not in compliance during the term of this contract.
H. Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this contract is in excess of $100,000 , Consultant shall have submitted and filed the required certification pursuant to the Byrd Anti -Lobbying Amendment (31 U.S.C. § 1353). If at any time during the contract term funding exceeds $100,000.00, Consultant shall file with the Agency the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congre ss, officer or employee of Congre ss, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non - Federal funds that takes p lace in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient.
I. Appendix II to Part 200 (J) – Procurement of Recovered Materials:
i. Consultant shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Reso urce Conservation
and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the
Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percenta ge of recovered
materials practic able, consistent with maintaining a
satisfactory level of competition, where the pu rchase price of the item exceeds $10,000 or the value of the quantity
acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement.
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ii. In the performance of this contract, the Consultant shall make maximum use of products containing recovered
materials that are EPA -designated items unless the product cannot be acquired: Competitively within a timeframe
providing for com pliance with the contract performance schedule; Meeting contract performance requirements; or At a reasonable price.
iii. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site,
https://www.epa.gov/smm/comprehensive-procurement-
guideline-cpg-program.
5. MISCELLANEOUS PROVISIONS
A. The Consultant shall not use the DHS seal(s), logos, c rests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.
B. This is an acknowledgement that FEMA financial assistance will be used to fund the contract only. The Consultant will comply with all applicable fed eral law, regulations, executive orders, FEMA policies, procedures, and directives.
C. Consultant acknowledges that 31 U.S.C. Chapter 38
(Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.
D. The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the Agency, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.
E. General and Administra tive Expenses And Profit For Time And Materials Contracts/Amendments.
i. General and administrative expenses shall be negotiated and must conform to the Cost Principles.
ii. Profit shall be negotiated as a separate element of the cost.
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the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
iii. Any agreement, amendment or change order for work
performed on a time and mate rials basis shall include a ceiling price that Consultant exceeds at its own risk.
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