Agenda Item C.1
DISCUSSION/ACTION ITEM
Meeting Date: June 20, 2023
TO: Mayor and Councilmembers
FROM: Charles W. Ebeling, Public Works Director
CONTACT: Michael Winnewisser, Assistant Engineer
SUBJECT: Award of a Professional Design Services Agreement for conceptual design to Bengal Engineering , Inc. for the Cathedral Oaks Road and Crib Wall Project
RECOMMENDATION:
Authorize the City Manager to execute a Professional Desi gn Services Agreement for conceptual design with Bengal Engineering, Inc. for the Cathedral Oaks Road and Crib Wall Project (CIP No. 9053) for a total not -to-exceed amount of $ 585,000 with a termination date of December 31, 2024.
BACKGROUND:
The Cathedral Oaks Road Crib Walls were constructed in 1991 as part of the development conditions for the adjacent residential housing development located across Cathedral Oaks Road to the south. The portions of Cathedral Oaks Road and its adjacent right-of-way, which are supported by the crib walls, are located between Calle Real and Winchester Canyon Road. The crib walls consist of two sections with a combined length of 415 feet and a maximum height of 40 feet. Their location is identified in Figure 1 below. 1 Meeting Date: June 20, 2023
Figure 1 - Crib Wall Location Map
In early 2017, the City closed the road and bike path in this area following the January 2017 winter storms where erosion and subsidence occurred due to high-intensity rainfall and related stormwater runoff. Since January 2017, efforts to determine the condition of the path and crib walls and the repair scope continued.
On March 8, 2017, the City entered into a Professional Design Services Agreement with Bengal Engineering, Inc. (Bengal). Bengal led the engineering team tasked with determining the safety under Cathedral Oaks Road so that it could be re -opened, including assisting with the F ederal Highway Administration (FH WA) Emergency Response Damage Assessment, emergency repair plans, and constructi on support. On May 4, 2017, Bengal’s subcontractor, Subsurface Surveys & Associates, Inc. (Subsurface Surveys), performed fieldwork completing a resistivity survey at the site. Bengal provided Public Works staff with a Resistivity Survey Summary Report (RSSR). The RSSR identified the approximate depth and lateral extent of possible cavities or resistive objects and anomalous soil conditions. The consultant also noted in the report areas of suspected high moisture content zones which can contribute to areas of subsidence.
On June 6, 2017, the City re -opened Cathedral Oaks Road to vehicular traffic based on the observations of the repair work, RSSR survey, and professional engineering judgment. However, the City determined that further analysis is needed f or the adjacent Class I multi-purpose path, and the path remains closed.
2 Meeting Date: June 20, 2023
In May and September 2017, Granite Construction Company repaired sinkholes and provided protective measures in preparation for the winter storms and to re -open Cathedral Oaks Road. The City also attempted to secure emergency funds to repair the crib walls. The Public Works Department used earlier information gathered from investigations, inspections, and related repairs to support applications for funding permanent repairs from both the Federal Emergency Management Agency (FEMA) and FHWA. However, the Department was unsuccessful in obtaining emergency funding from FEMA.
On February 5, 2019, the Council approved a Professional Design Services Agreement with Earth Systems Pacific, Inc., (Earth Systems) for the Cathedral Oaks Crib Wall Repair Project. The scope of work included performing a comprehensive geotechnical evaluation including geotechnical boring s, soils analysis, ground penetrating radar, down -hole seismic testing, and structural analysis, providing recommendations and cost estimates for repair alternatives.
Earth Systems ’ report identified that there was no threat to Cathedral Oaks Road .
However, there appeared to be potential sinkholes or, at a minimum, unconsolidated soils underlying the bike path. Large voids were observed inside several of the crib walls, especially in Crib Wall B. No obvious signs of soil deposition from eroded backfill we re noted directly below the walls.
Since 2019, the Public Works Department has been closely monitoring the site for signs of further erosion, but no significant progress was made on the project . More recently, staff worked to develop a scope and budget for the Crib Wall redesign and reconstruction based on the six design alternatives optioned in the Earth Systems report. No significant change to the site conditions were observed during this period, and the ongoing drought did not precipitate the need for annual storm protection measures.
Due to a threat of severe winter storms, in November 2022 Public Works contracted with Granite Construction to perform interim maintenance by preparing the site for potential winter storms. This winterization effort inclu ded the installation of plastic sheeting and sandbags along the slopes of both crib Walls A and B. The sheeting also protected the portion of the slope between the multipurpose path and the roadway, all extending from the southernmost point of Wall A to the northernmost point of Wall B.
On January 9, 2023, an atmospheric river storm struck the County of Santa Barbara. The significant rainfall caused flooding on public streets, watersheds, creeks, open spaces, wetlands, and other properties in the City . Excess flows accelerated the erosion of an existing sinkhole in the bike pathway at the northernmost point of Wall B. Repair efforts are underway as a part of the emergency storm response. This work will attempt to fill the sinkhole and cover the rest of the fenced area with plastic sheeting; however, the formation and expansion of the sinkhole ha s increased the urgency for the design and construction of the Capital Improvement Program (CIP) project.
DISCUSSION:
3 Meeting Date: June 20, 2023
On January 26, 2023, a Request for Proposals ( RFP) for Professional Design, Engineering, Environmental, and Project Coordinating Services for the Cathedral Oaks Road and Crib Wall Project (CIP No. 9053) was issued. The RFP was closed on February 17, 2023, and Public Works had received only one proposal from Bengal. A four-member evaluation team that included three City staff members from Public Works and one member from City of Camarillo evaluated the proposal. Bengal has an extensive history with this project as outlined in the background section of this report. Their professional and engineering experience, understanding of the project location and history, and the needs of the City, justify their involvement in the project design.
Public Works Staff has met with Bengal Engineering to discuss potential approaches and design constraints of the project . As a result of these meetings, staff has determined a need for a more rigorous constraints analysis for the design alternatives provided by the 2019 Earth Systems report. This analysis is to identif y the constructability issues that would face both two new proposed alternatives as well as the existing alternatives, compare them, and narrow the scope of design to two alternatives maximum. Due to the urgent nature of the project, the proposed scope for the agreement with Bengal is focused on the Conceptual Design phase of the project to ensure the undertaking of this process begins early. Once the scope had been determined, staff negotiated the contract not -to- exceed amount of $585,000 with Bengal Engineering based on their original cost proposal and this revised scope. This conceptual design phase is anticipated to conclude in Spring 2024; however, the contract term will expire December 31, 2024 , in case this project phase experiences delays. Once the preferred design alternatives have been identified, staff will return to Council with a plan for the final design of the project.
Public Work s staff therefore recommend s that the City Council authorize the City Manager to award the Professional Design Services Agreement to Bengal as outlined in the recommendations of this report. The agreement with Bengal is provided in Attachment
1. GOLETA STRATEGIC PLAN:
This work furthers the City’s Strategic Plan as follows:
Citywide Strategy 5: Strengthen Infrastructure
Citywide Strategy 7: Maintain a Safe Community
FISCAL IMPACTS:
The total estimated project cost for the Cathedral Oaks Road and Crib Wall Project including conceptual design, environmental , final design which include right -of-way acquisition, construction which includes contingency and construction management, and staff time is shown below in Table 1. The attached estimate was developed by City staff and once the conceptual design phase is complete staff will update the estimate.
4 Meeting Date: June 20, 2023
Table 1: Project Cost Estimates
Project
Components Estimated Costs Funding Source Funding Amounts Conceptual Design $650,000 General Fund (101) $2,055,680 Environmental $550,000
FHWA - FEMA
Reimbursement
Anticipated (420)
$87,746
Final Design $2,050,000 Unfunded $15,626,574
Construction $14,520,000
Total: $17,770,000 Total: $17,770,000
Project Funding
Table 2 below shows the available funds for FY 2022 -23. There are sufficient funds to cover the costs of this agreement.
Table 2: FY 2022-23 Project Budget
Project: Cathedral Oaks Road and Crib Wall Project (9053) Account Fund
Type
FY 2022-23 Budget YTD Activity/
Encumbrances
Available Balance
101-90-
9053-
57050
General
Fund
$300,000 - $300,000
101-90-
9053-
57070
General
Fund
$1,765,412 $72,000 $1,693,412
101-90-
9053-
57071
General
Fund
$216,010 $160,000 $56,010
420-90-
9053-
57070
FHWA $87,746 - $87,746
Total $2,369,168 $232,000 $2,137,168
At the May 23, 2023 Preliminary Capital Improvement Budget Workshop, the City Council authorized a budget transfer of ARPA funds to the Ekwill Street and Fowler Road Extension Project (9002), which will be part of the 4 th Quarter Financial Review for FY 22/23. This adjustment will reduce the ARPA budget of $4,933,990 for this project, resulting in an estimated unfunded amount of $15.6 million.
5 Meeting Date: June 20, 2023
ALTERNATIVES:
The City Council may elect to not approve the agreement with Bengal and not authorize design services for this project. Doing so would result in delays to the project schedule.
Reviewed By: Legal Review By: Approved By:
___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager
ATTACHMENTS:
1. Professional Design Services Agreement with Bengal Engineering, Inc. for the Cathedral Oaks Road and Crib Wall Project
2. Cathedral Oaks Road and Crib Wall Project Award of Design Services Agreement Presentation
6 ATTACHMENT 1
Agreement for Professional Design Services Between the City of Goleta and Bengal Engineering
7 City of Goleta
Department of Public Works and Bengal Engineering
Project Name: CIP 9053 – Cathedral Oaks Road and Crib Wall Project
AGREEMENT FOR PROFESSIONAL DESIGN SERVICES
BETWEEN THE CITY OF GOLETA
AN
D
BENGAL ENGINEERING
This AGREEMENT FOR PROFESSIONAL DESIGN
SERVICES (herein referred to as “AGREEMENT”) is made and entered into this 20th day of June, 2023, by and between the CITY OF GOLETA, a municipal corporation (herein referred to as "CITY"), and BENGAL ENGINEERING, INC., a California Corporation (herein referred to as "CONSULTANT").
SECTION A. RECITALS
1. The CITY has a need for professional design services for the Cathedral Oaks Road and Crib Wall Project (CIP 9053); 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 com pliance with Goleta Municipal Code Sectio
n 3.05.260.
4. The City Council, on this 20th day of June, 2023, 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 are as follows:
Professional Design Services in conjunction with the Cathedral Oaks Road and Crib Wall Project (CIP 9053). Services shall generally include the constraints analysis and selection of preferred
8 City of Goleta
Department of Public Works and Bengal Engineering
design alternative, environmental studies, preparation of plans, specifications, and estimates, assistance in the project bidding process, and engineering support during construction, 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 $585,000 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:
Hourly at the hourly rates and with reimbursement 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 December 31, 2024, 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 Section 5.
Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including a list of ho urs 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 compensat ion for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section 3.
9 City of Goleta
Department of Public Works and Bengal Engineering
5. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be accomplished under the general direction of, and coordinate with, CITY's "Project Manager", as that staff person is designated by CITY from time to time, and who presently is Michael Winnewisser. 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 is from the date first written above to December 31, 2024, unless term of th is AGREEMENT is extended, or the AGREEMENT is 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. All services shall be completed according to the schedule for delivery of services attached as Exhibit “C” and incorporated herein.
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than CONSULTANT's drafts, notes and internal memorandum), including duplication of same prepared by CONSULTANT in the performance of these services, 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. CITY agrees to hold CONSULTANT harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans and specifications for purposes other than those described in this AGREEMENT, unless written authorization of CONSULTANT is first obtained.
8. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for profession al services which are personal to CITY. Scott Onishuk is deemed to be specially experienced and is a key member of CONSULTANT's firm, and shall be directly involved in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the progress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this AGREEMENT. This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
10 City of Goleta
Department of Public Works and Bengal Engineering
9. HOLD HARMLESS AND INDEMNITY
(a) Indemnification and Defense for Professional Service. To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless the CITY and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, costs and expens es, including attorney’s fees and costs, to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT.
CONSULTANT’s duty to defend shall consist of reimbursement of defense costs incurred by CITY in direct proportion to the CONSULTANT ’s proportionate percentage of fault. CONSULTANT ’s percentage of fault shall be determined, as applicable, by a court of law, jury or arbitrator. In the event any loss, liability or damage is incurred by way of settlement or resolution without a court, jury or arbitrator having made a determination of the CONSULTANT’s percentage of fault, the parties agree to mediation with a third party neutral to determine the CONSULTANT ’s proportionate percentage of fault for purposes of determining the amount of indemnity and defense cost reimbursement owed to the CITY.
(b) For All Other Liabilities. Notwithstanding the foregoing and without diminishing any rights of CITY, for any liability, claim, demand, allegation against CITY arising out of, related to , or pertaining to any act or omission of CONSULTANT, but which is not a design professional service, CONSULTANT shall defend, indemnify, and hold harmless CITY, its officials, employees, and agents (“Indemnified Parties”) from and against any and all damages, costs, expenses (including reasonable attorney fees and expert witness fees), judgments, settlements, and/or arbitration awards, whether for personal or bodily injury, property damage, or economic injury, and arising out of, related to, any concurrent or contributory negligence on the part of the CITY, except for the sole or active negligence of, or willful misconduct of the CITY. (c) No Waiver. ClTY does not waive, nor shall be deemed to have waived, any indemnity, defense or hol d 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 VI I or better, or as otherwise approved by CITY.
11 City of Goleta
Department of Public Works and Bengal Engineering
Insurance shall include the following (or broader) coverage:
a) Insurance Services Office Com mercial 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.
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 California worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,00 0 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 out 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 2004, or its equivalent. Addi tional 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 insur er’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance policies inception date, continuity date, or retroactive date must be before the effective date of this agreement. CONSULTANT agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
12 City of Goleta
Department of Public Works and Bengal Engineering
d)
Except for professional liability insurance, liability coverage shall be primary and non-contributing with any insurance maintained by CITY. e) Evidence of coverage (includi ng the workers’ compensation and employer’s liability policies) shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days’ prior written notice has been given to CITY.
Such provision shall not include any li mitation of liability of the insurer for failure to provide such notice.
f) No liability insurance coverage provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT ’s
employees, or agents, 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 requirements 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 forth herein. In the event any policy of insurance required under this AGREEMENT does not comply with 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 premium 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 right (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 relationship of the CONSULTANT to CITY shall be that of an independent contractor and that in no event shall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely
13 City of Goleta
Department of Public Works and Bengal Engineering
responsible for any workers compensati on insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the described work.
12. CORRECTIONS
In addition to the above indemnification obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed during CITY's review of CONSULTANT's report or plan s. Should CONSULTANT fail to make such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be ch arged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
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 term ination is for cause, 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 compensati on for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following s ubmission 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.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under this AGREEMENT shall operate as and be a release of CITY from all claims and liabilities for compensation to CONSULTA NT for anything done, furnished, or relating to CONSULTANT'S work or services. 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 by CITY shall not constitute, nor be deemed, a release of the responsibility and liability of CONSULTANT, its employees, subcontractors, agents and CONSULTANTs for the accuracy and competency of the information provided and/or work pe rformed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT, its employees, subcontractors, agents and consultants.
15. AUDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with re spect to all matters covered by this
14 City of Goleta
Department of Public Works and Bengal Engineering
AGREEMENT and will permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and proje ct records for at least 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 othe r party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party'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 wa iver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach 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 inv ocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT is unaware of any CITY employee or official that has a financial 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 by any CITY employee or official.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any 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 singular shall include the plural 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.
15 City of Goleta
Department of Public Works and Bengal Engineering
20. GOVERNING LAW
This AGREEMENT, and the rights and obl igations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venue 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, se xual 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
The tasks described in this AGREEMENT and all other terms of this AGREEMENT may be modified only upon mutual written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes 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, licenses, and certificates that may be required in connection with the performance of services under this AGREEMENT.
16 City of Goleta
Department of Public Works and Bengal Engineering
27. CAPTIONS
The captions or headings in this AGREEMENT are for convenience 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 respective administrators, officers, directors, shareholders, divisions, subs idiaries, agents, employees, successors, assigns, principals, partners, joint ventur ers, 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 representations for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, either oral or in writing, between the parties hereto with respect 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 unenfo rceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated 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 United 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: Scott Onishuk
Bengal Engineering
360 South Hope, Suite C-110
Santa Barbara, CA 93105
17 City of Goleta
Department of Public Works and Bengal Engineering
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 assistance 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. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference.
2. Federal Contract Provisions attached hereto as Exhibit “D” 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 federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
18 City of Goleta
Department of Public Works and Bengal Engineering
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 Md Wahiduzzaman
Chief Executive Officer
A T T E S T
_____________________________ _____________________________ Deborah Lopez, City Clerk Scott Onishuk
Principal Engineer
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
______
_______________________
Winnie Cai, Assistant City Attorney
19 City of Goleta
Department of Public Works and Bengal Engineering
20 City of Goleta
Department of Public Works and Bengal Engineering
EXHIBIT A
SCOPE OF SERVICES
1. PROJECT MANAGEMENT
This task includes Consultant coordinat ion with Subcontractors and the City, quality assurance and quality control for deliverables, and preparation and attendance of meetings for the Conceptual Design.
2. BOUNDARY SURVEYING
Consultant shall coordinate with Subcontractor to determine the existing right-of- way for the project.
Deliverables:
Consultant shall coordinate with and direct Subcontractor to provide the following.
x Review of one Preliminary Title Report (PTR),
x Review, research, and acquisition of record documents and maps and Department of Transportation right-of-way,
x Mapping, City limit information, and county coastal planning information,
x Right-of-way monumentation recovery, survey, analysis and determination of rights-of-way, easements, and other title matters, recover and/or establish geodetic and local survey control, x Field search and identification of ties to existing record monumentation, analysis and determination of boundary and/or easement location,
x And mapping of rights-of-way, easements, and other title interests.
Consultant shall supply one (1) Preliminary Title Report using the budget shown on the fee estimate.
3. TOPOGRAPHIC SURVEYING
The project shall generally use the aerial mapping already prepared for the City in about 2017. Supplemental details provided by Consultant and Subcontractors are detailed below.
Fill-in Topographic Survey
21 City of Goleta
Department of Public Works and Bengal Engineering
Consultant shall augment existing City information (“fill-in”) with additional surveying.
Because of the risk of working on or around the crib walls, the canopy of poison oak around them, and because the walls shall be replaced, there shall be no detailed as-built survey of the walls. A detailed as-built survey may later be required should the project require them.
Tree Survey
Consultant shall conduct a tree survey. The amount and scope of additional field topographic survey work to identify location, species and size of trees 5- inch or greater (diameter at breast height) is unknown.
This task assumes there could be up to five days of field work for tree surveys along with three days of office work to create the mapping for the field work.
Deliverables:
x Consultant shall provide fill-in topographic surveys and tree surveys.
Work shall be performed by Subcontractor.
4. REVIEW EXISTING AS-BUILT PLANS
Consultant shall review the existing as -built plans for Cathedral Oaks Road as well as search the UCSB Archives for photo history of the area. This information shall be used in the Constraints Analysis.
5. REVIEW GEOTECHNICAL REPORT AND STUDIES
Consultant shall review the existing g eotechnical studies for the area. This information shall be used in the Constraints Analysis.
6. CONSTRAINTS ANALYSIS
Consultant shall oversee the work of specialized Subcontractors to create Constraints Analysis. Details on the Constraints Analysis are specified below.
ENVIRONMENTAL CONSTRAINTS ANALYSIS
Consultant shall direct their Subcontractor in the preparation of an Environmental Constraints Analysis (ECA) for the proposed study area as provided by Consultant. The ECA shall include an inventory of existing environmental resources in the study area and a description of potential environmental issues that could be triggered by the proposed design alternatives. Subcontractor shall assume no more than three design alternatives for the purposes of this proposal.
The ECA shall briefly consider all to pics identified on Appendix G of the
22 City of Goleta
Department of Public Works and Bengal Engineering
California Environmental Quality Act (CEQ A) Guidelines. The evaluation of these topics shall be concise yet shall be discussed in sufficient detail to assess the need for further studies, analyses, or permits that may be required for each alternative proposed in the study area. Consultant shall direct Subcontractor to perform a cons istency review with the Local Coastal Plan/Coastal Act. Analysis shall be based primarily on a review of existing documentation and databases to determine whether there are any special requirements or regulations that could affect the project in the study area.
Included shall be a review of applicable City of Goleta (Goleta) and County of Santa Barbara (County) planning documents.
Consultant shall direct Subcontractor to include biological and archeological resource studies, which are described in detail below. Additionally, Consultant shall direct the Subcontractor to provide a Phase I Environmental Site Assessment (ESA) as part of the analysis to identify any hazardous materials or petroleum hydrocar bons at or near the study area.
The contents which shall be included in the resource studies and ESA are identified below.
BIOLOGICAL RESOURCES STUDY
Consultant shall direct the Subcontractor to conduct a desktop review, a field survey of the project study area where legal access is available.
This shall result in a biological resources section in the environmental constraints analyses that identifies habitats present in the study area, special-status species with potenti al to occur in the study area, a species list for each site, and potential regulatory implications associated with the study area.
The desktop review shall gather information on known special-status plant and wildlife resources and sensitive habitats in the study area and in the vicinity. Consultant shall direct the Subcontractor to review existing biological documents th at have been prepared for other projects in the area (as available). In addition, the California Natural Diversity Database (CNDDB), maintained by the California Department of Fish and Wildlife (CDFW), and the Information, Planning and Conservation System (IPaC), maintaine d by the U.S. Fish and Wildlife Service (USFWS), shall be queried. U.S. Geological Survey (USGS) soil data shall be consulted to determine presence of hydric soils and suitable soils for special-status p lant and wildlife species known from the area. Information obtained during th e literature review shall be used to focus the field survey effort.
Following the data review, Consultant shall direct the Subcontractor to
23 City of Goleta
Department of Public Works and Bengal Engineering
conduct a reconnaissance biological survey of the study area. This survey shall map plant communities and habitats, potentially jurisdictional areas, and identify special-status plant and wildlife species occurrences. If the survey and desktop review identify the potential for special-status species to occur in the study area, additional surveys may be necessary during the appropriate season/conditions for the species to determine if the resource is present in the survey area. If additional surveys are determined to be warranted, the seasonally timed surveys shall be performed under a requested contract amendment and the constraints analysis shall be updated accordingly.
Following the survey, Consultant sh all direct the Subcontractor to prepare a biological resources section within the ECA. The section shall detail the results of the background research and field survey and shall include:
o An introduction describing the site location and environmental setting,
o A description of the methods and results of the background searches and field survey,
o A discussion of the regulatory setting relating to protected natural resources;
o A discussion of the biological constraints that could affect design alternatives considered within the study area, and
o Shall identify mitigation measures that should be considered.
Consultant shall direct the Subcontractor to also present relevant maps depicting issues or constraints that can be spatially represented and utilized for future project design.
PHASE 1 ARCHAEOLOGICAL SURVEY REPORT
In compliance with CEQA and the City/County guidelines for protecting archaeological resources, Consultant shall direct the Subcontractor to conduct a survey that encompasses the study area where legal access is available. The survey would include a records search, initial native American coordination, a field survey, and preparation of a technical report (Phase 1 Archaeological Survey Report). The data pertinent to study area would be summarized in the ECA, as appropriate, and the Phase 1 Archaeological Survey Report would be appended to each ECA.
Consultant shall direct the Subcontractor to conduct background research, in part, by reviewing record s search data for the survey area from the Central Coast Informati on Center (CCIC) located at the University of California, Santa Barbar a to acquire site records for all
24 City of Goleta
Department of Public Works and Bengal Engineering
relevant previously recorded cultur al resources within, or within 0.25 mile of the study area, as well as pertinent copies of previous studies.
Consultant shall direct the Subcontractor to contact the California Native American Heritage Commission (NAHC) for a review of their Sacred Lands File. NAHC shall determine if any NAHC-listed Native American sacred lands are located within or adjacent to the study area. In addition, Consultant shall direct the Subcontractor to contact tribes identified by the NAHC as potentially having local knowledge regarding archaeological resources in the vicinity.
Upon completion of the records sea rch, Consultant shall direct the Subcontractor to conduct an intensive pedestrian survey of the study area. Consultant shall direct the Subcontractor to conduct a survey utilizing pedestrian transects spaced at intervals of approximately 5 meters, covering all portions of the study area. If any resources (e.g., prehistoric or historic archaeolog ical sites) are identified during the pedestrian survey, a change order shall be requested in order to officially document the resource(s).
Upon completion of the literature review, initial Native American coordination, and field survey, Consultant shall direct the Subcontractor to prepare a cultural resources technical report that shall summarize the results of the study, as well as provide management recommendations for resources within or near the st udy area. The report shall include maps depicting the area surveyed for cultural resources. An electronic draft of this report and figures sh all be submitted for review. If the locations of sensitive archaeological sites or Native American cultural resources are shown or described in the report, the report shall be considered confidential. The report may not be distributed to the public.
To protect these sensitive resources, the confidential technical report shall be made available only to qualified cultural resources personnel, the landowner, and project management personnel on a “need-to-know” basis.
PHASE I ENVIRONMENTAL SITE ASSESSMENT
Consultant shall direct a Subcontractor to conduct a Phase I Environmental Site Assessment (Phase I ESA) which shall be consistent with American Society for Testing and Materials (ASTM) Standard E1527-13 to assess the study area for the possible presence of hazardous materials or petroleum hydrocarbons at or near the study area. A stand-alone Phase I ESA shall be prepared which shall include interviews with past and present owners, operators, managers, and
25 City of Goleta
Department of Public Works and Bengal Engineering
occupants; review of historical sources of information, such as aerial photographs, fire insurance maps, building department records, chain of title documents, and land use records; review and summary of the geologic and hydrogeologic setting; review of government records, including regulatory reports for the study area and nearby or adjoining properties; visual inspection of the study area and adjoining properties; and documentation of research, observations, and results of the environmental inquiry. Consultant shall direct the Subcontractor to provide a written report that specific ally identifies any properties that shall require invasive site investigations. The Phase I ESA report for the study area shall be summarized in the ECA.
Deliverables:
x Constraints-level analysis of State CEQA Guidelines Appendix G issue areas.
x Biological constraints addressed in the body of the ECA (no stand- alone report).
x Phase I Archaeological Survey Report that covers the study area appended to the Constraint Analysis.
Geotechnical Contribution to the Constraints Analysis
Consultant shall direct the Subcontractor to review the methods, conclusions, and recommendations within any existing geotechnical reports.
This review shall be supplemented with additional literature review, including air photo/topographic map review and a report created by Subsurface Surveys (2017) for this same site.
Concurrently, Subcontractor shall interface with consultant with respect to the review and evaluation of the current, and any future, Conceptual Alternatives. These findings and conclusions shall be summarized in a geotechnical memo.
7. PUBLIC OUTREACH
Consultant shall oversee public outreach associated with this project.
Deliverables:
Consultant shall
x Prepare conceptual landscape plans for use in public outreach; x Attend up to two (2) Stakeholder Meetings.
Conceptual Landscape Plans
26 City of Goleta
Department of Public Works and Bengal Engineering
We envision that Conceptual Landscape plans and visual “renderings” shall be key to share the conceptual design with interested stakeholders and City officials.
Deliverables:
Consultant shall provide engineering support Subcontractor ’s landscape design.
This task includes surface modeling, preparation of computer files, coordination and technical support and attendance to the stakeholder meetings.
Consultant shall direct the Subcontractor to perform the following:
x Conceptual Landscape plans and Graphics
x Refinements to those landscape plans and graphics.
x Provide additional graphic support using the budget.
Stakeholder Meetings
This task provides the budget for two stakeh older meetings should the City wish to undertake them.
Stakeholder Meeting 1
Consultant and Subcontractor shall lead stakeholder meetings. Consultant shall direct the Subcontractor to meet with local stakeholders to discuss the two conceptual design alternatives and compile feedback based on their comments and concerns for each concept option. Cons ultant shall direct the Subcontractor to plan an in-person workshop at a City-provided location to meet with stakeholders. Public noticing of the meeting shall be the responsibility of the City via social media platforms, email, and/or mail.
Deliverables:
x Consultant shall provide engineering support to Subcontractor in surface modeling, technical support, and attendance at the stakeholder meeting. x Subcontractor shall prepare presentatio ns to one (1) meeting to present two (2) conceptual landscaping and engineering design alternatives to key stakeholders.
The 2 conceptual landscaping plans shall include:
x The tiered MSE retaining wall system mentioned in the “Conceptual Design Alternatives” section;
x A buttress fill.
Stakeholder Meeting 2
Consultant and Subcontractor shall attend a follow up public meeting to discuss the preferred option. This meeting shall be geared towards informing the public of the direction moving forward. Consultant shall direct Subcontractor in planning an in-person workshop at a City-provided location to meet with stakeholders. Public noticing of the meeting shall be the responsibility of the City
27 City of Goleta
Department of Public Works and Bengal Engineering
via social media platforms, email, and/or mail.
Deliverables:
x Consultant shall attend meeting and a ssist Subcontractor in preparation. x Subcontractor shall prepare for and attend one (1) meeting to present the final landscaping and engineering concept to key stakeholders.
8. CONCEPTUAL DESIGN ALTERNATIVES AND COST ESTIMATES
Alternatives Comparison
Consultant shall investigate and provide a study analyzing two (2) design alternatives, including:
x Tiered Mechanically Stabilized Earth (MSE) wall system x Buttress fill
This design alternative study shall also include:
x Constructability analysis of existing design alternatives as provided in the project Request for Proposals (RFP).
x Design options which consider the removal of the multi-purpose path.
Deliverables:
Consultant shall
x Develop an Alternative Comparison Matrix to weight the following factors for each alternative
o Feasibility of construction
o Construction costs
o Constraints
o Environmental constraints
o Easements and TCE requirements
o Permitting
x “Pros and Cons ” Memorandum which shall describe the pros and cons of the various alternatives.
x Preferred Alternative Conceptual Plan which shall be designed to 30% and shall include the following information as relevant:
o Plan view
o Typical cross section
o Profiles of alignment
o Earthwork volume
9. PREPARE DESIGN AND CONSTRUCTION TIMELINES FOR THE
PREFERRED ALTERNATIVE
Consultant shall coordinate with Subcontractors and the City to provide timelines for both design and construction for the preferred alternative.
28 City of Goleta
Department of Public Works and Bengal Engineering
10. CONCEPTUAL DESIGN REPORT & RECOMMENDATIONS
Consultant shall compile their findings fr om all previous tasks in a Conceptual Design Report, which shall provide recommendations based on project constraints and design factors. This re port and these recommendations shall be presented to City Council, and Consultant shall be prepared to attend and present.
Deliverables:
Consultant shall
x Prepare and submit a Conceptual Design Report and
recommendations, based on compilation of the various project constraints, engineering design factors, City goals/preferences, and project cost considerations.
x Provide recommendations to address previous engineering design options as well as any newly recommended Conceptual Alternatives.
Recommendations shall be based on the ranking criteria developed by the consultant and shall include a summary as well as an organized package of the research details and constraints supporting the final recommended results.
x Prepare a summary of the Conceptual Design phase for an update to City Council, including recomme ndations for the chosen design alternative. Consultant shall be prepared to present the Conceptual Design Summary and recommendations at a City Council session.
29 City of Goleta
Department of Public Works and Bengal Engineering
EXHIBIT B
SCHEDULE OF FEES
Bengal Engineering Rates
Principal Engineer $196
Project Manager $175
Bridge Engineer $170
Geotechnical Engineer $170
Engineering Geologist $170
Civil Engineer $150
Staff Engineer $116
Drafting / Technician $100
Administrative $105
Subcontractors Cost + 10% administrative and management oversight Direct Costs
Travel Cost
Vehicle Current IRS rate; No cost for projects within Santa Barbara County
Reproduction/Postage,
Etc. Cost
30 City of Goleta
Department of Public Works and Bengal Engineering
EXHIBIT C
ANTICIPATED PROJECT SCHEDULE
31 City of Goleta
Department of Public Works and Bengal Engineering
32 City of Goleta
Department of Public Works and Bengal Engineering
EXHIBIT D
FEDERAL CONTRACT PROVISIONS
During the performance of this contract, Bengal Engineering (the “Consultant”) shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit. In th is Exhibit, the term “Agency” shall mean the local agency entering into this contract with the Consultant.
1. CONTRACTING WITH SMALL AND MI NORITY FIRMS, WOMEN’S
BUSINESS ENTERPRISE 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 m inority businesses, and women's business enterprises are solicited whenever they are
potential sources;
iii. Dividing total requirements, w hen 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 services/assistance of the Small Business
Administration (SBA), and the Minority Business
Development Agency (MBDA) of the Department of
Commerce.
Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the Agency.
Notwithstanding the foregoing, the affi rmative steps requirements detailed above do not apply in the case of a noncompetitive procurement made
33 City of Goleta
Department of Public Works and Bengal Engineering
under the emergency exception/exigency exception to competitive procurements.
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 a nd reasonable; (ii) allocable to the grant award; (iii) conform to any limitations or exclusions set forth in the Cost Principles; (iv) be adequately documented; and (v) be determined in accordance with generally accepted accounting principles (“GAAP”), ex cept, 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 determined 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 Agency, Inspectors General, the Comptroller 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 or to copy excerpts and transcriptions as reasonably needed.
C. The Consultant agrees to pr ovide the Federal Agency or its authorized representatives 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 AWARDS (2
C.F.R. § 200.326)
34 City of Goleta
Department of Public Works and Bengal Engineering
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 an d termination for convenience by 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 contract. 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 whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof (“Notice of Termination for C onvenience”). If the termination is for the co nvenience of the Agency, the Agency shall compensate Provider for work or materials fully and adequately provided through the effective date of
termination. No amount shall be paid for unperformed work or materials not provided, including anticipated profit.
Consultant shall provide documentation deemed adequate
by the Agency to show the work 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 Consu ltant 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 for Ca use”). If the termination is for cause, Consultant shall be
compensated for that portion of the work or materials
35 City of Goleta
Department of Public Works and Bengal Engineering
provided which has been fully and adequately completed
and accepted by the Agency as of the date the Agency
provides the Notice of Termination. In such case, the Agency shall have the right to take whatever steps it deems
necessary to complete the project and correct Consultant’s deficiencies and charge the cost thereof to Consultant, who shall be liable for the full cost of the Agency's corrective action, including reasonable overhead, profit and attorneys' fees.
iii. Reimbursement; Damages. Th e Agency shall be entitled to reimbursement for any compensation paid in excess of work rendered or materials provided 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 in 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 t he 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 unperformed 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 entitled to receive only the amounts payable under this
36 City of Goleta
Department of Public Works and Bengal Engineering
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 Agency provided in this Section shall 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.
B. Appendix II to Part 200 (C) – Equal Employment Opportunity:
Except as otherwise provided under 41 C.F.R. Part 60, Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended 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. Consultan t 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 nat ional origin. 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, notices to be provided by the Agency setting forth the provisions of this nondiscrimination clause.
ii. Consultant will, in all soli citations or advertisements for employees placed by or on behalf of Consultant , state that all qualified 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 applicant 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
37 City of Goleta
Department of Public Works and Bengal Engineering
employee who has access to the compensation information of other employees or applicants as a part of such
employee's essential job functions discloses the
compensation of such other employees or applicants to
individuals who do not otherwise have access to such
information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an
investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with Consultant‘s legal duty to furnish information.
iv. Consultant will send to each 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 contractor'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 Executive 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, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access 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 whole or in part and the
contractor may be declared ineligible for further Government contracts in accordance with procedures 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 September 24,
38 City of Goleta
Department of Public Works and Bengal Engineering
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 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 pr otect 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 Safety 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 hours. 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 construction work and
provide that no laborer or mechanic must be required to work in surroundings 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.
39 City of Goleta
Department of Public Works and Bengal Engineering
ii. No contractor or subcontractor contracting for any part of the contract work which may requir e or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not 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
subcontractor responsible ther efor 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 territor y), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, 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 such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
iv. The Agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other
federally-assisted contract subject to the Contract 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 contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section.
v. The Consultant or subcontractor shall insert in any
subcontracts the clauses set fo rth in paragraph (ii) through
40 City of Goleta
Department of Public Works and Bengal Engineering
(v) of this 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 Inventions 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 the non -Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental,
developmental, or research work under that “funding
agreement,” the non -Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements), and any implementing regulations issued by the Agency.
ii. The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or coop erative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, 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 Counseling Assistance
and Training Grant Program, Disaster Case Management
Grant Program, and Federal Assistance to Individuals and Households – Other Needs Assistance Grant Program, as
FEMA awards under these programs do not meet the
definition of “funding agreement.”
41 City of Goleta
Department of Public Works and Bengal Engineering
F. Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this cont ract 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 to 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 understands 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 Protection Agency Regional
Office, and (3) Consultant agrees to include these
requirements in each subcontract exceeding $150,000.
ii. Pursuant to the Federal Wate r Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 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 required to assure notification to the Federal awarding agency and the appropriate Environmental 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 to 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 Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Su spension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declar ed ineligible under statutory or regulatory authority other than Executive Order 12549.
42 City of Goleta
Department of Public Works and Bengal Engineering
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 none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) 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 regulat ions in any lower tier covered transaction it enters into.
iii. This certification is a material representation of fact relied upon by Agency. If it is later 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 addition to remedies available to the Agency, the Federal Government may pursue available
remedies, including but not limited to suspension and/or debarment.
iv. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise 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 Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31
43 City of Goleta
Department of Public Works and Bengal Engineering
U.S.C. 1352. Each tier must also disclose any lobbying with non- Federal funds that takes place 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 Resource 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 percentage of recovered
materials practicable, consistent with maintaining a
satisfactory level of competition, where the purchase 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.
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 compliance with the contract performance
schedule; Meeting contract perfo rmance requirements; or At a reasonable price.
iii. Information about this requir ement, 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, crests, 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
44 City of Goleta
Department of Public Works and Bengal Engineering
applicable federal 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 Administrative 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.
To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the Consultant , the Consultant’s investment, 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 materials basis shall include a ceiling price that Consultant exceeds at its own risk.
45 ATTACHMENT 2
Cathedral Oaks Road and Crib Wall Project Award of Design Services Agreement Presentation
46 Cathedral Oaks Road
& Crib Wall Project
Award of Design
Services Agreement
Public Works Department
Michael Winnewisser
Assistant Engineer
June 20, 2023
47 Project Background
Cathedral Oaks Road crib walls
constructed in 1991
as a
condition for a development
project
January 2017 - winter storms
resulted in road and
multi-
purpose path closure,
investigation began
March through September 2017 -
Analyses and rep
airs are
performed on developing
sinkholes and underground voids
June 20, 2023, City Council 2
48 Project Background (Cont’d)
February 2019 – Earth Systems
performed a geotechnical
analysis
Between 2019 – 2022 staff
monitored the wall
November 2022 – a City Hired to
Contractor performed
winterization work
January 9, 2023 – new winter
storm increased the sinkhole
June 20, 2023, City Council 3
49 Current Project Status
January 26, 2023 – Request
for Proposals (RFP)
February 17, 2023 – RFP
closes
Selected Bengal Engineering
Engineering’s Roadway is
safe, but the design and
construction of a permanent
solution are needed
June 20, 2023, City Council 4
50 Estimated Project Costs
Project Components Estimated Costs
Conceptual Design $650,000
Environmental $550,000
Final Design $2,050,000
Construction $14,520,000
Total: $17,770,000
June 20, 2023, City Council 5
51 Project Budget
6 Project: Cathedral Oaks Road and Crib Wall Project (9053) Account Fund Type FY 2022-23
Budget
YTD Activity Available
Balance
101-90-9053-57050 General Fund $300,000 - $300,000
101-90-9053-57070 General Fund $1,765,412 $72,000 $1,693,412 101-90-9053-57071 General Fund $216,010 $160,000 $56,010 420-90-9053-57070 FHWA $87,746 - $87,746
Total $2,369,168 $232,000 $2,137,168
June 20, 2023, City Council
52 Estimated Project Schedule
Conceptual Design (this agreement)
Today– Spring 2024
Environmental Review
Spring 2024 – Winter 2025
Design
Spring 2024 – Spring 2025
Construction
Start Summer 2025
June 20, 2023, City Council 7
53 Recommendation
Authorize the City Manager to execute a
Professional Design Services
Agreement with
Bengal Engineering, Inc. for the Cathedral Oaks
Road and Crib Wall Project
June 20, 2023, City Council 8
54 Questions?
9June 20, 2023, City Council
55