Agreements and Amendment for 2023 Winter Storm Emergency Response Services for Emergency Storm Response — Goleta City Council, July 18, 2023 (part 1 of 2)

CPMS
Agenda Item B.5

CONSENT CALENDAR
Meeting Date: July 18, 2023
TO: Mayor and Councilmembers
FROM: Charles W. Ebeling, Public Works Director
CONTACT: Michael Winnewisser, Assistant Engineer
SUBJECT: Agreements and Amendment for 2023 Winter Storm Emergency Response Services for Emergency Storm Response
RECOMMENDATION:

A. Authorize the City Manager to execute a Professional Design Services Agreement with Mark Thomas for emergency storm design services associated with the Newport Drive Erosion and Sinkhole Project, for a total not-to-exceed amount of $140,000 with an expiration date of December 31, 2024;
B. Authorize the City Manager to execute a Professional Design Services Agreement with Mark Thomas for emergency storm design services associated with the San Pedro Creek and Storm Drain Repair Project, for a total not -to-exceed amount of $114,000 with an expiration date of December 31, 2024;
C. Authorize the City Manager to exe cute Amendment No. 2 to Professional Services Agreement No. 2023 -016 with Rincon Consultants , Inc. for emergency storm professional services, increasing the contract amount by $100,001 for a new total not- to-exceed amount of $359,000 with an expiration date of December 31, 2024; D. Authorize the City Manager to execute Amendment No. 1 to General Services Agreement No. 2023-031 with Mark Crane’s Tree and Arborist Services for January 2023 Winter Storm Emergency Response Tree Work, decreasing the contract amount by $40,000, for a new to tal not-to-exceed amount of $60,000 with an expiration date of December 31, 2023; and
E. Authorize the City Manager to execute Amendment No. 1 to General Services Agreement No. 2023-032 with Mark Crane’s Tree and Arborist Servi ces for March 2023 Winter Storm Emergency Response Tree Work, increasing the contract amount by $250,000, for a new total not-to-exceed amount of $300,000 with an expiration date of December 31, 2023.
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BACKGROUND:

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 property in the City; damage to public rights -of-way; downed trees blocking sidewalks and streets; road closures; and disruption of public services. The storm prompted the County of Santa Barbara and the City of Goleta to declare a local emergency on January 9, 2023. On January 18, 2023, the White House added the County of Santa Barbara to the Presidential Major Disaster Declaration to support the State’s storm response and recovery efforts. On April 3, 2023, a Presidential Major Disaster Declaration was declared for the se vere winter storms that occurred beginning of February 21, 2023, and continuing into March.

Pursuant to City of Goleta Municipal Code Section 3.05.120 for Urgencies, Public Works staff engaged in immediate emergency operations by securing necessary contractors and consultants to permit the continued performance of the operations and services of the City, and to avoid the immediate danger to life, health, or property caused by the January and March 2023 storms. On June 6, 2023, the City Council ratified several agreements and amendments associated with the Winter Storm projects.

DISCUSSION:

As a result of the storm, a wide range of damages occurred throughout the City of Goleta.

Public Works staff has created a list of damages and consolidated them into the Public Works Storm Damage List, which names each project and describes the damages caused by the storm and needed repairs. The emergency agreements and amendments referenced in this report are necessary to cover services for one or more projects included on this list, as well as emergency clean-up and maintenance measures. The current list is outlined in Attachment 1 – Public Works Storm Damage List.

Emergency Services Agreements

Mark Thomas

Staff are contracting with Mark Thomas for professional design services on two separate storm projects for the design of permanent repairs. These projects are the San Pedro Creek and Storm Drain Repair Project, and the Newport Drive Erosion and Sinkhole Repair Project. Mark Thomas was included on City’s 2023 Pre-Qualified Consultants list for Engineering and Environmental Design.

Public Works staff is recommending that City Council award and authorize the City Manager to execute a professional design services agreement with Mark Thomas for the Newport Drive Erosion and Sinkhol e Repair for $ 127,000 and authorize $13,000 for potential extra services for a total not-to-exceed amount of $140,000 (Attachment 2).

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Public Works staff is also recommending that City Council award and authorize the City Manager to execute a professional design services agreement with Mark Thomas for the San Pedro Creek and Westmoreland Place Storm Drain Repair Project for $102,000 and authorize $ 12,000 for potential extra services for a total not -to-exceed amount of $114,000.

Rincon Consultants, Inc.

Rincon Consultants, Inc. (Rincon) has an existing Professional Services Agreement No. 2023-016 for environmental monitoring, permitting, and arborist services related to 2023 Winter Storm Emergency Damage Repair projects. Rincon’s agreement was executed on March 30, 2023 and expires on December 31, 2023. Amendment 1 was approved by City Council on June 6, 2023 . Additional scope of work is being requested for Rincon to provide permitting services for the permanent repairs and the March storm projects.

Public Works staff is requesting to execute Amendment No. 2 to increase the contract amount by $100,001 for a new total not -to-exceed amount of $ 359,000 (Attachment 4).

The original Professional Services Agreement No. 2023-016 and Amendment 1 with Rincon Consultants, Inc. is provided in Attachment 5.

Emergency Winter Storm Emergency Response Tree Work - Mark Crane’s Tree and Arborist Services

Local tree contractors were mobilized during the January and March storm events to address damaged and fallen trees on City properties. Mark Crane’s Tree and Arborist Services responded to remove tree debris and address life and safety issues . A full assessment and inventory of storm -damaged trees was conducted during the weeks following the storm events . Over 200 trees on public lands were damaged and work is ongoing to remove debris while ensuring sensitive biological resources such as nesting birds, bats, monarch butterfly habitat , and wetlands are protected. City Council ratified two General Service Agreements with the tree contractor for the January and March storm events to address downed and damaged trees. Following completion of the damaged tree inventory, amendments to the General Services Agreements are recommended to align with the amount of damage and resulting work for each storm event.

Public Works staff recommend Amendment No. 1 to General Services Agreement No. 2023-031 with Mark Crane’s Tree and Arborist Services f or January 2023 Winter Storm Emergency Response Tree Work, decreasing the contract amount by $40,000, for a new total not-to-exceed amount of $60,000 (Attachment 6). Fewer trees were damaged by the January storm than originally anticipated, thus the contract amount should be reduced to reflect less required work. The original General Services Agreement No. 2023 -031 with Mark Crane’s Tree and Arborist Services is provided in Attachment 7.

More trees were damaged in the March storm event than originally ant icipated. Public Works staff recommend Amendment No. 1 to General Services Agreement No. 2023-032 with Mark Crane’s Tree and Arborist Services for March 2023 Winter Storm Emergency Response Tree Work, increasing the contract amount by $250,000 (Attachment 8). These contract increases are recommended to address the large volume of debris from the 3 Meeting Date: July 18, 2023

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March storm that needs to be cleared for public safety . The original General Services Agreement No. 2023 -032 with Mark Crane’s Tree and Arborist Services is provided in Attachment 9.

GOLETA STRATEGIC PLAN:

This emergency repair work aligns with the following City-wide Strategic Plan initiatives:

City-Wide Initiative 5: Strengthen Infrastructure
City-Wide Initiative 7: Maintain a Safe Community

FISCAL IMPACTS:

There are sufficient funds in the adopted Fiscal Year (FY) 23/24 budget to cover the cost of the services associated with these emergency response agreements.

The total estimated costs and funding sources associated with the agreements identified in this report are listed in the tables below.

Table 1 – Mark Thomas – Newport Drive Erosion and Sinkhole Repair Cost Estimates

Project Components Estimated
Costs
Funding Source Funding
Amounts
Design $140,000 General Fund (101-50-
5200-54004) $140,000
Total $140,000 Total $140,000

Table 2 – Mark Thomas –San Pedro Creek and Storm Drain Repair Cost Estimates

Project Components Estimated
Costs
Funding Source Funding
Amounts
Design $114,000 General Fund (101-50-
5200-54004) $ 114,000
Total $ 114,000 Total $ 114,000

Table 3 – Rincon Emergency Response Projects Cost Estimates

Project Components Estimated
Costs
Funding Source Funding
Amounts
Original Agreement $44,999 General Fund (101-50-
5200-54004) $359,000
Amendment 1 $214,000
San Pedro Creek and
Westmorland Pl. Storm $44,487
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Drain Repair (Permanent
Repair)
Cathedral Oaks Slope
Stability $5,514
Ellwood Mesa Bluff and
Beach Access Erosion $30,000
Ellwood Mesa Access
Road & Devereux Creek $10,000
Emergency Tree Removal $10,000
Total $359,000 Total $359,000

Table 4 – Mark Crane’s Tree and Arborist Services

Project Components Estimated
Costs
Funding Source Funding
Amounts
Original Agreement for
January Storm
Emergency Tree Work
$100,000
General Fund (101-50-
5200-54004) $360,000
Amendment 1 (contract
reduction) $(40,000)
Subtotal January Storm $60,000

Original Agreement for
March Storm Emergency
Tree Work
$50,000

Amendment 1 $250,000
Subtotal March Storm $300,000
Total $360,000 Total $360,000

These projects are potentially eligible for Federal Emergency Management Agency (FEMA) reimbursement; however, each project must meet the eligibility criteria outlined by FEMA . Table 7 summarizes the FY 23/24 project budget amount s in the project account. Public Works staff will return to City Council with an update on project funding.

At this time, no additional funding is requested.

Table 5: Project Funding

Emergency Response Costs, FY 23/24
Fund
Type
Account FY 22/23
Budget
YTD Actuals/
Encumbrance/
Reserve
Carryover to
FY 23/34

FY 23/24 Total
Available
Budget
General
Fund
101-50-
5200-54004
$2,877,320.00 $1,164,755.60 $1,712,564.40 $1,712,564.40 Total $2,877,320.00 $1,164,755.60 $1,712,564.40 $1,712,564.40 5 Meeting Date: July 18, 2023

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ALTERNATIVES:

The City Council can elect not to approve the amendments and agreements discussed herein; however, this would result in significant delays in initiating and completing the work associated with these emergency storm projects. This delay would make many of these locations inaccessible and hazardous to the public. This would also jeopardize the acquisition of FEMA funds by risking project completion by the eighteen-month deadline for large projects, which is July 14, 2024.

Reviewed By: Legal Review By: Approved By:

___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager

ATTACHMENTS:

1. Public Works Storm Damage List

2. Professional Design Services Agreement with Mark Thomas – Newport Drive Erosion and Sinkhole Repair

3. Professional Design Services Agreement with Mark Thomas – San Pedro Creek and Storm Drain Repair

4. Amendment No. 2 to Agreement No. 2023-016 with Rincon Consultants, Inc.

5. Professional Services Agreement No. 2023-016 and Amendment 1 with Rincon Consultants, Inc.

6. Amendment No. 1 to Agreement No. 2023-031 with Mark Crane’s Tree and Arborist Services

7. General Services Agreement No. 2023-031 with Mark Crane’s Tree and Arborist Services

8. Amendment No. 1 to Agreement No. 2023-032 with Mark Crane’s Tree and Arborist Services

9. General Services Agreement No. 2023-032 with Mark Crane’s Tree and Arborist Services

6 ATTACHMENT 1

Public Works Storm Damage List
7 Attachment 1 – Public Works Storm Damage List

January 2023 Storm Event
Project Name Project Description
Emergency Storm
Services
Removal of downed or damaged trees, clean-up of sediment and debris at Ellwood Beach, filling of various potholes, and storm drain pumping.

Ellwood Mesa Access
Road and Devereux
Creek Culvert Repair
The service roadway to Ellwood Mesa and Devereux Creek
culvert was damaged by the high flows . Temporary repairs include the installation of a metal plate to bridge the eroded roadway and reinforcement of the failing culvert.

San Pedro Creek and
Storm Drain Repair
The concrete collar of the storm drain was exposed and
separated from a pipe in the high storm flows. Repairs include excavation of existing pipe, and installation of the new collar, headwall, and footing. Nearby downed trees must also be removed.

Ellwood Beach Dr.

Drain Repair
High flows caused erosion of the nearby slope past the end of the roadway. Repairs include the installation of a drainage system to mitigate flows.

San Rossano &
Padova Drain
Replacement
A sinkhole developed in the parkway near the curb drain inlet by Evergreen Park due to pipe erosion. Repairs include
excavation, replace ment of eroded pipe, backfill, and compaction of the soil.

Jonny D. Wallis
Neighborhood Park
Sinkhole
A Sinkhole developed due to high flows. Repairs include excavation and remov al of old facilities and backfilling the sinkhole with native material and sand.

Cathedral Oaks Slope
Stability
Excess flows accelerated the erosion of the sinkhole in bike pathway. Repairs include the installation of a secant wall to prevent further erosion, backfill of materials including pressure-injected foam, and investigatory potholing and trenching in the roadway.

Ellwood Mesa Bluff
and Beach Access
Erosion
Due to the heavy rainfall flows, the coastal bluffs eroded at two locations. Repairs include trail segments to redirect runoff water away from the bluff, stabilization, and backfilling of eroded sections.

Maria Ygnacio Bike
Path
Undercrossing sustained heavy flows of debris and sediment, clogging the drain and dislodging rock riprap. Repairs include clearing debris, repairing riprap, and clearing downed trees and vegetation.

Tree Damage 78 trees across eight parks and open spaces were damaged or destroyed. Debris clearing, chipping, and tree felling will be performed under the direction of certified arborists and biologists.
8 March 2023 Storm Event
Newport Drive Erosion
& Sinkhole

A sinkhole developed near the sidewalk near the curb drain inlet due to storm drainpipe erosion. Repairs include
excavation, replace ment of eroded pipe, backfill, and compaction of soil.
303 Santa Barbara
Shores Catch Basin
and Culvert
A sinkhole developed near the open space due to storm
drainpipe erosion. Repairs include excavatio n, replacement of eroded pipe, backfill, and compaction of soil.

Santa Barbra and Sea
Gull Erosion Repair
Project
A sinkhole developed near the sidewalk near the curb drain inlet due to storm drainpipe erosion. Repairs include
excavation, replacement of eroded pipe, backfill, and
compaction of soil.

Tree Damage 120 trees across ten parks and open spaces were damaged or destroyed. Debris clearing, chipping, and tree felling will be performed under the direction of certif ied arborists and biologists.

9 ATTACHMENT 2

Professional Design Services Agreement with Mark Thomas – Newport Drive Erosion and Sinkhole Repair
10 City of Goleta
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Project Name: Newport Creek Culvert Repair Project (23STRM-38)

AGREEMENT FOR PROFESSIONAL DESIGN SERVICES

BETWEEN THE CITY OF GOLETA
AN
D
MARK THOMAS AND COMPANY, INC.

This AGREEMENT FOR PROFESSIONAL DESIGN SERVICES (herein referred to as “AGREEMENT”) is made and entered into this 18th day of July, 2023,
by and between the CITY OF GOLETA, a municipal corporation (herein referred to as "CITY"), and Mark Thomas and Company, Inc., a California Corporation (herein referred to as "CONSULTANT").

SECTION A. RECITALS

1. The CITY has a need for professional design services for Newport Creek Culvert Repair Project; and

2. The CITY does not have the personnel able and/or available to perform the services required under this AGREEMENT, and there fore, the CITY desire s 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 18th day of July, 2023, approved this

AGREEMEN
T 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, experienc e, 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 Newport Drive Erosion and Sinkhole Project Services shall generally include Project Management, Records Research, Permit Support, Interim
Improvements, Permanent Improvements, and Bid/Construction

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support 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 $140,000 (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 compensati on 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 appl icable hourly rates for extra services shall be at the hourly rates set forth in Exh ibit 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

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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 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 professional services which are personal to CITY.

Josh Cosper is deemed to be specially ex perienced 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.

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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 expenses, inc luding 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 settle ment 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 an y 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 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:

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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.

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 wor kers’ 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 agenc ies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the work performed or related to the cont ract. 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. 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 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.

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d) Except for professional liability insurance, liability 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, 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 limitation 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 responsible for any workers compensat ion insurance, withholding taxes,

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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 (as agreed to by the CONSULTANT and the City), such correction shall be made by CITY, and the cost thereof shall be charged 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 te rmination 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 compensation for actual wo rk 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.

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 performed; nor shall such appr oval 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.

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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 waiver 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 AGREEM ENT, 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 election of remed ies 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.

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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, 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 servic es 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.

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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, s ubsidiaries, 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 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: Josh Cosper
Mark Thomas and Company, Inc.
10630 Town Center Drive, Suite 117
Rancho Cucamonga, CA, 91730

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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 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.

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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 MARK THOMAS AND COMPANY, INC.

_____________________________ _____________________________ Robert Nisbet, City Manager Zach Siviglia, President

A T T E S T

_____________________________ _____________________________ Deborah Lopez, City Clerk Robert M. Brogan, Secretary

APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY

_____________________________
Scott Shapses, Deputy City Attorney

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Exhibit A
Proposal

Task 1.0 – Project Management

Task 1.1 – Project Administration

Consultant shall provide planning, organization, and monitoring of project work activities and resources in accordance with contracted scope, schedule and budget. Also includes preparation of c ontract paperwork, written and verbal correspondence, maintaining project files, internal meetings, monthly progress reports and managing sub-consultants.

Task 1.2 – Meetings

Consultant shall conduct the following meetings:
x Kickoff meeting (1).
x Project Development Team (PDT) meetings (up to 3) after each submittal (Preliminary, 90%, and Final).

Each meeting will include preparation of agendas and meeting minutes.

Assumptions:
x Project duration will occur over a twelve (12) month period.

Deliverables:
x Attendance of up to four (4) meetings and agendas / meetings minutes for each meeting.

Task 2.0 – Records Research

Task 2.1 – Records Research

Consultant has secured existing storm drain as-builts from the City currently.

Consultant shall secure the following additional information pertinent to the design of project improvements:

x Adjacent roadway and street as-builts from the City.
x Landnet Boundary Retracement (i.e. existing right of way, property lines, and easements), Project Control, and Topographic Survey Base Maps from the City’s surveying consultant.
x Geotechnical Investigations from the City’s geotechnical consultant. x Available parcel/tract/records of su rvey/corner records/record mapping from the San Bernardino County Surveyor that might show survey

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monuments or benchmarks that cou ld be destroyed / obliterated by the project improvements.

Additionally, Consultant shall distribute Utility “A” Letters (record request forms) to each utility registered with Underground Se arch Alert within the project limits to request as-built mapping of their facili ties as previously discussed in the project approach. Consultant shall utilize as-built data and utility maps obtained from the utility owners to prepare existing utility base mapping and identify all utilities on the plans that are within the project limits. The utility mapping developed for the PS&E will be verified through topographic surveys and a site walk.

Assumptions:
x Up to $300 for fees was included to secure utility as-built record information. x No utility potholing is included.

Deliverables:
x Compiled as-built / record map package
x Utility Base Maps in .dwg format.

Task 3.0 – Permit Support

Task 3.1 – General Coordination

This project will require the following regulatory permits/approvals to support proposed project improvements:

x State Water Resources Control Board – Section 401 of the Clean Water Act x United States Army Corps of Engineers – Section 404 of the Clean Water Act
x California Department of Fish and Game – Section 1602 of the California Fish and Game Code

The City has secured Rincon Consultants, Inc. (Rincon) to lead the coordination with all resource agencies in securing permits. To support Rincon in their efforts, Consultant shall provide the following:

x Detailed Project Description of impr ovements, construction requirements (schedule, access, duration, types of equipment necessary), and project schedule.
x Project Disturbance and Work Area Limits / Access Maps. x Water Diversion Plan.
x Field Visit / Site Consultation.
x One (1) Permit Application Review Meeting.

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Task 3.2 – Response to Comments

Upon receiving any comments from the resource agencies during the permit processing, Consultant shall provide up to twenty (20) hours providing as necessary revisions and response to comment forms to supply Rincon to process with resource agencies.

Assumptions
x No Santa Barbara County Approvals are required, these improvements are entirely within the jurisdiction of the City.
x Improvements will be focused on repairs to the creek bank and City owned RCP/CSP storm drain, this is not a creek restoration project. x Prior to developing response to comments or revising project improvement plans, Consultant shall provide an es timate of hours and schedule to the City for approval.

Deliverables:
x Detailed Project Description.
x Project Disturbance / Work Area Limits.
x Water Diversion Plan.
x Field Visit.
x Permit Application Review Meeting.

Task 4.0 – Interim Improvements

Should the City and Rincon determine the necessity to obtain emergency permits, Consultant shall provide interim bid ready improvement plans, specifications, and estimate that will generally include the following improvements:

1. Providing grout / gunite backfill underneath the existing headwall/outlet structure to backfill scour damage.

2. Temporary dirt backfill and compaction immediately adjacent to the downstream and above the existing headwall / outlet structure.

3. Sidewalk / roadway repairs.

The following submittals would be included with these efforts.

Task 4.1 – 90% Improvement Plans, Specifications & Estimate Consultant shall provide the following Im provement Plans as part of the 90% submittal:

x Title Sheet / General Notes / Details – 1 Sheet
x Site Improvements / Removals Plan – 2 Sheets

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Additionally, Consultant shall secure the City’s boilerplate bid documents to use a template to develop project specific General and Special Provisions, and Technical Specifications. Lastly, Consultant shall provide a detailed Engineer’s Estimate of Probable Costs.

Task 4.2 – Final Improvement Plans, Specifications & Estimate Consultant shall update previously subm itted Improvement Plans, General and Special Provisions, and Technical Specifications, and Estimate of Probable Costs based upon and City provided comments, develop a Response to Comments Form, and submit final signed PS&E ready to advertise for bid.

Task 4.3 – Interim Improvements Bid and Construction Support During the advertisement of bids, Consultant shall provide assistance, as required, to the City during bidding of the project. The work may include answering questions from prospective bidders, assisting the City in the preparation of addenda to the PS&E during the advertisement period, and providing consultation and interpretation of the construction documents.

During construction of interim improvements, Consultant shall provide assistance to the City that will include address ing and respond to RFI’s, reviewing shop drawing submittals, preparation of supplemental sketches and details as required to resolve field construction items, and attendance of as necessary at pre-bid/pre- construction/construction meetings.

Assumptions:
x This task will not be utilized if the Permanent Improvement cannot be built prior to early 2024.

Deliverables:

x Improvement Plans (90% and Final).
x General and Special Provisions, Technic al Specifications (90% and Final). x Engineer’s Estimate of Probable Costs (90% and Final). x Support to Bid Addenda (Up to 1).
x Attendance of a Pre-Construction Meeting.
x Response to up to five (5) Requests for Information.
x Review of up to two (2) Submittals.

Task 5.0 – Permanent Improvements

Consultant ill provide interim bid ready improvement plans, specifications, and estimate that will generally include th e following improvements for permanent conditions:

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1. Providing grout / gunite backfill underneath the existing headwall/outlet structure to backfill scour damage (if not previously completed).

2. Removal and replacement of wingwalls / apron / headwall at outlet structure as necessary.

3. Installation of concrete-lined heavy c lass rip rap or similar armor proofing material along creek bank and at outlet structure.

4. As necessary velocity dissipating impr ovements at inlet and outlet structure.

5. Backfill and compaction immediately adjacent to the downstream and above the existing headwall / outlet structure.

6. Sidewalk / roadway repairs (if not previously completed).

The following submittals would be included with these efforts.

Task 5.1 – Concept Improvements

Upon completion of the Technical Studies, Consultant shall provide a Concept Improvement Plan and Engineer’s Estimate of Probable Costs to the City for review and concurrence of project improvements.

Task 5.2 – 90% Improvement Plans, Specifications & Estimate

Consultant shall provide the following Im provement Plans as part of the 90% submittal:

x Title Sheet / General Notes – 1 Sheet
x Details – 1 Sheet
x Site Improvements / Removals Plan – 3 Sheets

Task 5.3 – Final Improvement Plans, Specifications & Estimate

Consultant shall update previously subm itted Improvement Plans, General and Special Provisions, and Technical Specifications, and Estimate of Probable Costs based upon and City provided comments, develop a Response to Comments Form, and submit final signed PS&E ready to advertise for bid.

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bed and banks and the implications to the planned storm drain repairs, and provide recommendations for the repair of the culvert and stream creek to protect against future damage from scour and erosion.

Additionally, Consultant shall provide a Structural Assessment of the existing Headwall, Apron, and Wing Walls on the outlet structure under the responsible charge of a California Professional Structur al Engineer. Generally, this will be based upon existing availably as-built information and field observations, include an assessment of any damage to the existing outlet structure facilities, and recommended removals / modifications to said outlet structure to ensure facility is sufficient per applicable codes pertinent to retaining wall structures to support backfill and roadway conditions after permanent project improvements / repairs to the culvert are completed.

Assumptions:
x Hydraulic analysis of Newport Creek is not included.

Deliverables:
x Improvement Plans (Concept, 90% and Final).
x General and Special Provisions, Technic al Specifications (90% and Final). x Engineer’s Estimate of Probable Costs (Concept, 90% and Final). x Hydraulic and Stream Stability Assessment.
x Structural Assessment.

Task 6.0 – Bid/Construction Support (Permanent Improvement)

Task 6.1 – Bid Support

During the advertisement of bids, Consultant shall provide assistance, as required, to the City during bidding of the project. The work may include answering questions from prospective bidders, assisting the City in the preparation of addenda to the PS&E during the advertisement period, and providing consultation and interpretation of the construction documents.

Task 6.2 – Construction Support

During construction of interim improvements, Consultant shall provide assistance to the City that will include addressing and respond to RFI’s, reviewi ng shop drawing submittals, preparation of supplemental sketches and details as required to resolve field construction items, and attendance of as necessary at pre-bid/pre- construction/construction meetings.

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Task 6.3 – As-Built Drawings
Consultant shall prepare record drawings from contractor and construction as-built drawings based on a single complete set of markups/redline plans as provided by the City’s Construction Manager and Inspector.

Assumptions:
x N/A.

Deliverables:
x Support to Bid Addenda (Up to 1).
x Attendance of a Pre-Construction Meeting.
x Response to up to ten (10) Requests for Information.
x Review of up to five (5) Submittals.
x Final As-Built Drawings.

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Exhibit B
Schedule of Fees

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EXHIBIT C

PROJECT SCHEDULE

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EXHIBIT D

FEDERAL CONTRACT PROVISIONS

During the performance of this contract, Mark Thomas and Company, 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 entering into this contract with the Consultant.

1. CONTRACTING WITH SMALL AND MINORITY 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 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 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

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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 and reasonable; (ii) allocable to the grant award; (iii) conform to any limitations or exclusions set forth in the Cost Principles; (iv) be ad equately 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 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)

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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 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 Con tractor violates or breaches the terms of the contract, then the fo llowing termination clauses shall apply and have precedence over the contract. Otherwise, the following termination clauses shall not be applicable to the contract.

No amount shall be paid for unperformed work or materials not provided, including anticipate d 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 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 for Cause”). If the termination is for cause, Consultant shall be compensated for that portion of the work or materials provided which has been fully and

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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.

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 Section, and Consultant specifically waives any claim for any other amounts or damages, including, but not limited to, any

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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. 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 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 solici tations 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.

This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's

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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 investiga tion 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, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

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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 req uest 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 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 mate rials 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 employment of laborers or mechanics shall require or permit any such laborer

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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 territory), 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 forth in paragraph (ii) through (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.

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E. Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:

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 cooperative 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.”

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).

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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 Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared inelig ible 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 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).

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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 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:

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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 performance requirements; or At a reasonable price.

iii. Information a bout this requirement, along with the list of EPA- designate items, is avail able 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. Th e Consultant will comply with all 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.

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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.

44 ATTACHMENT 3

Professional Design Services Agreement with Mark Thomas – San Pedro Creek and Storm Drain Repair
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Project Name: San Pedro Westmoreland Place Storm Drain Repair(23STRM-41)

AGREEMENT FOR PROFESSIONAL DESIG N SERVICE S

BETWEEN THE CITY OF GOLETA
AND

MARK THOMAS AND COMPANY, INC
This AGREEMENT FOR PROFESSIONAL DES IGN SERVICES (herein referred
to as “AGREEMENT”) is made and entered into this 18th day of July, 2023, by and between the CITY OF GOLETA, a municipal corporation (herein referred
to as "CITY"), and MARK THOMAS AND COMPANY, INC; a Stock Corporation (herein referred to as "CONSULTANT").

SECT
ION A. RECITALS

1. The CITY has a need for professional de si gn services for San P edro Creek Westmoreland Place Drain Repair; 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 desir es to contrac
t for professional services to accomplish this work; and

3. The CITY procured these services in comp liance with Goleta Muni cipal Code Section 3.05.260.

4. The City Council, on this 18th day of July, 2023, approved this AGREEMENT and authorized the City Manager to execute the AGREEMENT.

SECTION B. TERMS

2. DESCRIPTION OF SERVICES
The services to be performed by CONSULTANT are as follows:

Professional Design Services in conjunction with San Pedro Creek Westmorland Place Storm Drain Repair Services shall generally include project management, records research, permit support, permanent improvements, bid, and construction support as more

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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 $114,000 (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 hours worked by personnel classification).

All payments shall be made within 30 days after CITY’s approval of the invoice.

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 a pplicable 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

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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 coordinate with, CITY's "Project Manager", as that staff person is designated by CITY from time to time, and who presently is Kent Yankee 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 this AGREEMENT is extended, or the AGREEMENT is terminated as provided for herein.

8. PERSONAL SERVI CES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY.

Josh Cosper 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.

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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 expenses, 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 (“I ndemnified 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 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.

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Insurance shall include the following (or broader) coverage:

c) Workers’ Compensation insurance complying with California worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 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 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. 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.

c) Professional liability insurance po licies inception date, continuity date, or retroactive date must be before the effective date of this agreement.

CONSULTANT agrees to maintain continuous coverage through a

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period no less than three years after completion of the services required by this agreement.

d) Except for professional liability insurance, liability coverage shall be primary and non-contributing with any insurance maintained by CITY.

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.

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

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an officer, agent, servant or employee of CITY. CONSULTANT shall be solely responsible for any workers compensation 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 plans. Should CONSULTANT fail to make such correction in a reasonably timely manner (as agreed to by the CONSULTANT and the City), such correction shall be made by CITY, and the cost thereof shall be charged 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 termination 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 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.

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 CONSULTANT 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 performed; 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 em ployees, subcontractors, agents and consultants.

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15. AUDIT OF RECORDS
At any time during normal business hou rs and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with respect to all matters covered by this AGREEMENT and will permit CITY to audi t, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and projec t 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 other 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 waiver 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 invocation of any such right or remedy shall not constitute a waiver or election of remedi es with respect to any other permitted or available right of remedy.

18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEM ENT 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.

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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, venue shall be in Superior Court of Santa Barbara County.

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

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may be required in connection with the performance of services under this AGREEMENT.

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, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this AGREEMENT.

31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the Un ited 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: Josh Cosper
Mark Thomas and Company, Inc
2388 Junction Ave, Suite 110
San Jose, CA 95134

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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 “C” and incorporated
herein by reference.

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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 Zach Siviglia, President

A T T E S T

_____________________________ _____________________________ Deborah Lopez, City Clerk Robert M. Brogan, Secretary

APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY

_____________________________
Scott Shapses, Deputy City Attorney

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Exhibit A
Proposal

Task 1.0 – Project Management

Task 1.1 – Project Administration

Consultant shall provide planning, organization, and monitoring of project work activities and resources in accordance with contracted scope, schedule and budget. Also includes preparation of contract paperwork, written and verbal correspondence, maintaining project files, internal meetings, monthly progress reports and managing sub-consultants.

Task 1.2 – Meetings

Consultant shall conduct the following meetings:
x Kickoff meeting (1).
x Project Development Team (PDT) meetings (up to 3) after each submittal (Preliminary, 90%, and Final).

Each meeting will include preparation of agendas and meeting minutes.

Assumptions:
x Project duration will occur over a twelve (12) month period.

Deliverables:
x Attendance of up to four (4) meetings and agendas / meetings minutes for each meeting.

Task 2.0 – Records Research

Task 2.1 – Records Research

Consultant has secured existing storm drain as-builts from the City currently.

Consultant shall secure the following additional information pertinent to the design of project improvements:

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x Available parcel/tract/records of survey/corner records/record mapping from the San Bernardino County Surveyor that might show survey monuments or benchmarks that could be destroyed / obliterated by the project improvements.

Additionally, Consultant shall distribute Utility “A” Letters (record request forms) to each utility registered with Underground Search Alert within the project limits to request as-built mapping of their facilitie s as previously discu ssed in the project approach. Consultant shall utilize as-built data and utility maps obtained from the utility owners to prepare existing utility base mapping and identify all utilities on the plans that are within the project limits. The utility mapping developed for the PS&E will be verified through topographic surveys and a site walk.

Assumptions:
x Up to $300 for fees was included to secure utility as-built record information. x No utility potholing is included.

Deliverables:
x Compiled as-built / record map package
x Utility Base Maps in .dwg format.

Task 3.0 – Permit Support

Task 3.1 – General Coordination

This project will require the following regulatory permits/approvals to support proposed project improvements:

It is also understand that the City already obtained permits under emergency conditions to provide interim improvement s to repair the San Pedro Creek bank and City owned storm drain RCP/CSP storm dr ain facility. The City has secured Rincon Consultants, Inc. (Rincon) to lead the coordination with all resource agencies in securing permits. To support Rincon in their efforts, Consultant shall provide the following:

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x Water Diversion Plan.
x Field Visit / Site Consultation.
x One (1) Permit Application Review Meeting.

Task 3.2 – Response to Comments

Assumptions
x No Santa Barbara County Approvals are required, these improvements are entirely within the jurisdiction of the City.
x Improvements will be focu sed on repairs to the creek bank and City owned RCP/CSP storm drain, this is not a creek restoration project. x Prior to developing response to comm ents or revising project improvement plans, Consultant shall provide an estimate of hours and schedule to the City for approval.

Deliverables:
x Detailed Project Description.
x Project Disturbance / Work Area Limits.
x Water Diversion Plan.
x Field Visit.
x Permit Application Review Meeting.

Task 4.0 – Interim Improvements

1. Providing replacement design to the storm drain system.

2. Temporary dirt backfill and compaction immediately adjacent to the City owned RCP/CSP storm drain facility.

The following submittals would be included with these efforts.

Task 4.1 – 90% Improvement Plans, Specifications & Estimate Consultant shall provide the following Im provement Plans as part of the 90% submittal:

x Title Sheet / General Notes / Details – 1 Sheet
x Site Improvements / Removals Plan – 2 Sheets

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During construction of interim improvements, Consultant shall provide assistance to the City that will include addressing and respond to RFI’s, reviewing shop drawing submittals, preparation of supplemental sketches and details as required to resolve field construction items, and attendance of as necessary at pre-bid/pre- construction/construction meetings.

Assumptions:
x N/A

Deliverables:

x Improvement Plans (90% and Final).
x General and Special Provisions, Technical Specifications (90% and Final). x Engineer’s Estimate of Probable Costs (90% and Final). x Support to Bid Addenda (Up to 1).
x Attendance of a Pre-Construction Meeting.
x Response to up to five (5) Requests for Information.
x Review of up to two (2) Submittals.

Task 5.0 – Permanent Improvements

Consultant ill provide interim bid ready improvement plans, specifications, and estimate that will generally include the following improvements for permanent conditions:

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1. Providing a new headwall at the outlet structure of the City owned RCP/CSP storm drain facility (if not previously completed).

2. Installation of concrete-lined heavy class rip rap or similar armor proofing material along creek bank and new storm drain outlet.

3. As necessary velocity dissipating improvements at inlet and outlet structure.

4. Backfill and compaction immediately adjacent to the downstream and above the existing headwall / outlet structure (if not previously completed).

The following submittals would be included with these efforts.

Task 5.1 – Concept Improvements

Task 5.2 – 90% Improvement Plans, Specifications & Estimate

Consultant shall provide the following Im provement Plans as part of the 90% submittal:

x Title Sheet / General Notes – 1 Sheet
x Details – 1 Sheet
x Site Improvements / Removals Plan – 2 Sheets

Task 5.3 – Final Improvement Plans, Specifications & Estimate

Task 5.4 – Technical Studies
Consultant shall provide a Hydraulic and Stream Stability Assessment per the scope included in Attachment B to this proposal. Generally, this will be based upon existing availably hydrology/hydraulic information and field observations, include an assessment of the potential for vertical and lateral adjustments of the stream bed and banks and the implications to the planned storm drain repairs, and provide recommendations for the repair of the culvert and stream creek to protect against future damage from scour and erosion.

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Assumptions:
x Hydraulic analysis of San Pedro Creek is not included.

Deliverables:
x Improvement Plans (Concept, 90% and Final).
x General and Special Provisions, Technical Specifications (90% and Final). x Engineer’s Estimate of Probable Costs (Concept, 90% and Final). x Hydraulic and Stream Stability Assessment.

Task 6.0 – Bid/Construction Support (Permanent Improvement)

Task 6.1 – Bid Support

Task 6.2 – Construction Support
During construction of interim improvements, Consultant shall provide assistance to the City that will include addressing and respond to RFI’s, reviewing shop drawing submittals, preparation of supplemental sketches and details as required to resolve field construction items, and attendance of as necessary at pre-bid/pre- construction/construction meetings.

Assumptions:
x N/A.

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Exhibit B
Schedule of Fees

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EXHIBIT C

FEDERAL CONTRACT PROVISIONS
During the performance of this contract, Mark Thomas and Company, 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 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. § 200.32

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 th e 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, wh en 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 affirmative steps requirements detailed above do not apply in the case of a noncompetitive procurement made

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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 and 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”), 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 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)

B. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoev er or to copy excerpts and transcriptions as reasonably needed.

C. The Consultant agrees to provide 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)

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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 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 Contra ctor 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.

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.

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iii. Reimbursement; Damages. The 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 fo r 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.

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Chapter 60:

ii. Consultant will, in all solicitations 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.

This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's

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iv. Consultant will send to each l abor 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.

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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 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 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.

ii. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer

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E. Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:

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ii. Pursuant to the Federal Water 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 Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

i. This contract is a covered trans action 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).

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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 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.

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.

I. Appendix II to Part 200 (J) – Procurement of Recovered Materials:

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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-desi gnated items unless the product cannot be
acquired: Competitively within a timeframe providing for compliance 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, 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 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.

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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.

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.

77 ATTACHMENT 4

Amendment No. 2 to Professional Services Agreement No. 2023-016 with Rincon Consultants, Inc.

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AMENDMENT NO. 2

TO A PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF GOLETA
AND

RINCON CONSULTANTS, INC

This Amendment No. 2 to the Professional Services Agreement by and between the City of Goleta , a municipal corporation (“City”) and Rincon Consultants, Inc (“Consultant”) dated March 30, 2023 (“Agreement,” Agreement No. 2023-016) is made on this 18th day of July, 2023.

SECTION A. RECITALS

1. This Agreement is for the Professional Services for environmental permitting, and arborist in conjunction with 2023 Winter Storms Services; and

2. This Agreement has been amended to provide for additional compensation in the amount of $214,000 for continued tasks (Amendment No. 1); and

3. The Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed two hundred fifty -eight thousand nine hundred ninety-nine dollars ($258,999); and

4. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of $100,001 for additional tasks; and

5. The Agreement currently provides in Section 6 for the termination of the Agreement on December 31, 2023; and

6. The parties desire to amend the Agreement so as to extend the termination of the Agreement to December 31, 2024; and

7. The Agreement currently provides in Exhibit A entitled “Scope of Work” the complete and particular description of services; and

8. The parties desire to amend Exhibit A by adding additional services as more completely and particularly set forth in the Scope of Work, attached as Exhibit "A-1"; and

9. The Agreement did not include provisions regarding the Suspension and Debarment Act, B yrd Anti -Lobbying Act, the Clean Air Act, and termination for cause/convenience and the parties desire to add these; and

10. The parties desire to include Exhibit “C” entitled, Federal Contract Provisions; and

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11. City Council approved this Amendment No. 2, on 18th day of July, 2023.

SECTION B. AMENDED TERMS

Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:

1. Subsection (a) of Section 3. COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of $100,001 and to read in its entirety:
(a) Maximum and Rate . The total compensation payable to CONSULTANT for the services under this AGREEMENT SHALL
NOT EXCEED the sum of three hundred fif ty-nine thousand ($359,000) herein "not-to-exceed amount") and shall be earned as the work progresses.

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.

2. Section 6. TERM, PROGRESS AND COMPLETION of the Agreement is amended to extend the term for an additional twelve months (12) to read in its entirety.

The term of this Agreement is from the date first written above to December 31, 2024, unless the term of this 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 within the term of this Agreement following the notice to proceed.

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3. This Agreement is amended to delete and replace in its entirety:

Exhibit A “Scope of Work ” with Exhibit A-1 “Scope of Work” attached hereto and incorporated herein.

4. Section 33. FEDERAL REQUIREMENTS of the Agreement is added to include Federal Requirement Provisions as follows:

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 Feder al Awards, which is expressly incorporated herein by reference.

2. Federal Contract Provisions attached hereto as Exhibit “ C” and incorporated herein by reference.

5. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect.

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In concurrence and witness whereof, this Amendment No. 2 has been executed by the parties effective on the date and year first above written.

CITY OF GOLETA CONSULTANT

____________________________ ______________________________ Robert Nisbet, City Manager Steven Hongola, Vice President

ATTEST:

_____________________________ ______________________________ Deborah Lopez, City Clerk Lacrissa Davis, Chief Financial Officer

APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney

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Exhibit A-1
Scope of Work

This Scope of Work is intended to provide support to the City and shall be completed as needed and as directed by the City. Support shall be provided at several project locations that may include, but not be limited to, Ellwood Beach Drive Drain Repair, Sa n Pedro Creek Westmoreland Place Storm Drain Repair, Ellwood Mesa Access Road and Devereux Creek Culvert Repair, San Rossano and Padova Drain Replacement, Maria Ygnacio Creek and Bike Path Debris Cleanup at Hollister Overcrossing, Cathedral Oaks Slope Stability, Ellwood Mesa Trail Repair, and any emergency storm related project. For any of these projects, emergency support shall include the following tasks as needed.

Task 1 Field Assessment
The emergency notification (Regional General Permit [RGP] 63) submitted to the U.S. Army Corps of Engineers (USACE) requires a brief description of the project area’s existing conditions and anticipated environmental impacts resulting from the proposed work (amount of dredge or fill material, acreage of disturbance, removal of significant vegetation, loss of habitat, etc.).

This task shall include time to conduct a brief field reconnaissance survey of the project area and a 100-foot buffer to map potentially jurisdictional resources and assess the potential for threatened or endangered species to occur. The Consultant has conducted numerous studies of sensitive biological resources in the city and would leverage existing reports to conduct this task in a cost-efficient manner.

Task 2 Emergency Permit Notifications
For emergency work that may result in discharges of dredged or fill material into Waters of the U.S./state a notification under Regional General Permit 63 (RGP 63) shall be submitted to the USACE and the State Water Resources Control Board (SWRCB) and Central Coast Regional Water Quality Control Board shall be notified under the Water Quality Certification for RGP 63. Additionally, for emergency work that may substantially affect the bed, bank, or streambed, the California Department of Fish and Wildlife shall be notified through their Environmental Permit Information Management System (EPIMS). If any repair work occurs in the Coastal Zone, as is envisioned at some of the sites identified by the City, the California Coastal Commission requires an application for an emergency permit to be submitted prior to initiating the activity. The Consultant shall also support the City with their internal emergency permit process, including noticing requirements and hearing support.

Each notification requires the same general information, broadly summarized below:

 The applicant’s name and contact information,
 The location of the project, illustrated map,
 A brief explanation of why the project qualifies as an emergency, including DocuSign Envelope ID: E924EE76-6CC7-415F-80A1-D4AEA2570A4C 83 City of Goleta
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explanation of the imminent threat to life or property.  A description of methods anticipated to be used to rectify the situation, including photographs, plans, drawings or sketches showing the area to be impacted, and a short narrative describing how the work is to be completed.  A brief description of the existing site conditions and anticipated environmental impacts.

The Consultant shall be available to prepare the majority of each notification but shall work with the City to address items related to the project details, such as work limits, volumes of materials, etc.

Task 3 Permit Submittal Coordination
The Consultant shall be prepared to develop and submit each permit notification to the respective resource agency on behalf of the City, as directed, and shall be available to field questions from agency staff related to the project. The Consultant shall confirm the approach with the City prior to responding and shall be available for field visits or virtual meetings to help streamline the permitting process. The USACE is required to coordinate with other resources agencies (i.e., Environmental Protection Agency, U.S. Fish and Wildlife Service, State Historic Preservation Officer, etc.) and are required to fully consider any comments received. The USACE may impose terms and conditions to avoid and minimize adverse effects on aquatic resources and may require mitigation to reduce the project’s adverse environmental effects to a minimal level. The Consultant shall support any coordination efforts or provide support on further technical reports such as a mitigation plan.

Task 4 Construction Support
The Consultant shall provide construction monitoring support as directed by the City. The Consultant has biologists, and ISA certified arborists on staff and shall subcontract additional specialists as needed to meet the needs of each project.

The Consultant has intimate knowledge of the biological resources present in the city, and understands that the projects could potentially affect monarch butterflies, tidewater goby, Southern California steelhead, and California redlegged frog, as well as nesting birds. The Consultant shall subcontract Althouse and Meade, Inc. for support with monarch butterfly related items. The Consultant shall provide archaeologists and native American monitors during earth disturbing activities, as required by resource agencies.

Task 5 Project Completion Notifications
The USACE, SWRCB, and CDFW require project completion documentation which includes a summary of the work performed, measures incorporated to protect the environment, and actual impacts sustained, with photo documentation of before/after conditions. The Consultant shall take the lead on completing each completion report in coordination with the City.

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Task 6 Project Management and Coordination
This task includes coordination with the Consultant’s project team to efficiently execute this Scope of Work. This task includes financial management and monthly invoicing in the City’s preferred format.

Assumptions
 All tasks will be initiated as directed by the City.
 All agency notification fees will be paid directly to the respective resource agency by the City, unless directed otherwise.
 All materials shall be submitted to the City in draft form and submitted to the resource agencies after City approval.

San Pedro Creek Westmoreland Place Storm Drain Repair Scope of Work

Task 1 Biological Resources Assessment
Consultant shall conduct a literature review followed up a field survey to document plant and wildlife species observed and evaluate the site’s potential to support sensitive biological resources. The literature review will include an evaluation of current and historical aerial photographs of the site, regional and site‐specific topographic maps, and climatic data. Queries of the United States Fish and Wildlife Service (USFWS) Information for Planning and Consultation system, CDFW California Natural Diversity Database, and California Native Plant Society Online Inventory of Rare and Endangered Plants of California will be conducted to obtain comprehensive information regarding state and federally listed species, and other special status species. Several other up to date resources will be reviewed for additional information on existing conditions relating to biological resources, such as United States Department of Agriculture Natural Resources Conservation Service Web Soil Survey, USFWS Critical Habitat Portal, CDFW Biogeographic Information and Observation System, CDFW Special Vascular Plants, Bryophytes, and Lichens List, CDFW Special Animals List, and California Essential Habitat Connectivity Project commissioned by the California Department of Transportation and CDFW.

Following the literature review, one Consultant biologist will perform a reconnaissance- level site visit to assess the habitat suitability for potential special status species, map the existing vegetation community and land cover types, map regulated biological resources currently on site, document wildlife connectivity/movement features, and record observations of plant and wildlife species. The reconnaissance survey will be focused on the project footprint and will include a 100-foot buffer, where accessible (i.e., the study area). The study area will be photographed and significant findings will be mapped. Consultant shall identify plant and wildlife species encountered (including special status species), potentially jurisdictional waterways and wetlands, sensitive vegetation communities, and protected trees. The habitat(s) on site will also be assessed to verify their potential to support special status species.

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The potential for special status species to occur will be based on a habitat suitability analysis only and will not include definitive surveys for the presence or absence of the species. Definitive surveys for special status species often require specific survey protocols involving extensive field survey time to be conducted at certain times of the year. Upon completion of the field survey, and as part of the Biological Resources Assessment (BRA) preparation, Consultant shall identify any additional species-specific or protocol level studies that may be recommended and may be necessary for permit issuance.

Consultant shall conduct a jurisdictional delineation of surface waters that may be afforded regulatory oversight by federal, state, and local regulatory agencies within the project development footprint plus a 100-foot buffer. The delineation will focus on the potential presence of wetlands within and adjacent to the development footprint. CDFW and CCRWQCB jurisdiction will be mapped to the top of the bank or edge of riparian vegetation, whichever is greater. USACE jurisdiction will be mapped to the Ordinary High Water (OHWM), or adjacent wetlands consistent with current agency regulations.

Potentially jurisdictional waters would be evaluated during the field survey but included in a stand-alone Jurisdiction Delineation (JD) report to support USACE Section 404 permitting. If it is determined during the field survey that the project would not involve earth work below the OHWM of San Pedro Creek, or in its adjacent wetlands, Task 2 and Task 3, described below, would not be required and the results of the JD would be included in the BRA report. The BRA report will satisfy CDFW’s requirement to submit a “biological study,” as well as the requirement for a delineation of aquatic resources.

Task 2 Jurisdictional Delineation
As described above, Consultant shall conduct a JD to map the current limits of each agency’s jurisdiction. If the project will require work below the OHWM, a standalone JD report will be prepared. The JD report will include a map of jurisdictional resources and potential impacts to jurisdictional areas. The primary focus of the fieldwork will be the application of accepted federal and state methodologies for the identification and delineation of jurisdictional waters and riparian habitats.

The delineation of waters and wetlands will be to the level appropriate for a full jurisdictional waters field delineation, conducted in accordance with the USACE Delineation Manual (1987), applicable regional supplements to the manual, and the latest guidance from the CDFW and CCRWQCB. This methodology is the acceptable approach for delineating the boundaries of federal, state, and local jurisdiction in support of pursuing permits for impacts to jurisdictional waters.

The Jurisdictional Delineation Report will include a brief introduction and background of the project, a discussion of methods used for the jurisdictional delineation study, and the results and conclusions of the study, including the field data collected, a summary of findings, and recommendations regarding the need for permits and limits of regulatory jurisdiction. Using aerial photography and topographic mapping of the project site, DocuSign Envelope ID: E924EE76-6CC7-415F-80A1-D4AEA2570A4C 86 City of Goleta
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Consultant shall overlay data collected using a Trimble® Global Positioning System unit, capable of sub-meter accuracy, to present the locations of wetland sample pits, limits of the channel bed and bank, limits of riparian habitat, and regulated biological resources observed during the field survey, if any. The report will also include a project location map, a soils survey map, data observation forms, and a complete list of plant species observed will also be included. The report will include narrative descriptions of all jurisdictional waters and wetlands identified, as well as representative photographs and quantified lengths and acreages.

Task 3 USACE Section 404 Permit
A Section 404 permit from the USACE under the CWA will be required to address potential impacts to waters of the U.S. resulting from the project. San Pedro Creek is designated critical habitat for southern California steelhead and will require consultation with NMFS as specified in Section 7 of the ESA. Any dredge or fill activities within San Pedro Creek would trigger Section 7 consultation. Initial consultation with NMFS would be informal, and require the development of a Biological Assessment (BA) to provide impact analysis for federally listed species that could directly or indirectly be affected by project activities. Consultant shall prepare a brief BA evaluating the project’s effects on the southern steelhead and its designated critical habitat. We envision that the analysis will be brief and qualitative, and that no hydrologic evaluation will be needed. As required, Consultant shall prepare a USACE PCN package under NWP 3.

Projects permitted under Section 404 of the CWA require compliance with Section 106 of the National Historic Preservation Act. Consultant shall conduct a literature review to determine whether any historic sites are present in the project vicinity, substantiated by a field assessment if necessary. A cultural report documenting the findings of the historic site review in relation to the project will be prepared and provided USACE for consultation with the State Historic Preservation Officer and Native American tribes as needed.

Task 4 CCRWQCB Section 401 Water Quality Certification
Under this task Consultant shall prepare a CWA Section 401 Certification Application for Dredge or Fill pursuant to the procedures for discharges of dredged or fill materials to waters of the State for submittal to the CCRWQCB. If it is determined that work will occur outside of federal jurisdiction, a Waste Discharge Requirement (WDR) will be prepared pursuant to the Porter-Cologne Act. Our application package will include:

• Cover letter
• Application form
• Check for application fee and project fee (to be provided by the City, not included in cost estimate)
• Site plans depicting anticipated impacts
• Jurisdictional Delineation
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• Compensatory Mitigation Plan or Restoration Plan, depending on permanent impacts
• Tier 2 Alternatives Analysis. The alternatives analysis will only consider on-site alternatives, as the project inherently cannot be located at an alternate location.

Methods and feasibility details for each alternative would be developed in coordination with the City

Consultant shall prepare the required 401 Certification/WDR Application and supporting documentation, provide the package to the City for review and comment, and incorporate any requested changes. Upon approval, Consultant shall submit the application package to the CCRWQCB.

Under this task, Consultant shall prepare a letter requesting a Pre-Filing Meeting, and upon approval, submit the request to CCRWQCB. Consultant recommends submitting this request as early as possible so that the required 30-day waiting period elapses without delaying the application submittal.

Task 5 CDFW Notification of Lake/Streambed Alteration
Consultant shall prepare an application (termed “notification”) for a standard regular term (five years or less) Streambed Alteration Agreement based on the project description to be provided by the City. Consultant shall provide the notification package in Microsoft Word format to the City for review, prior to uploading to CDFW’s Environmental Permit Information Management System (EPIMS). To maximize efficiency the package will include a completed Notification form, as well as supporting technical information to support CEQA review for the project, such as the CEQA Categorical Exemption prepared for the project. We envision that these attachments will include the BRA, JD, and a detailed project description. Consultant shall prepare calculations of permanent and temporary impacts to San Pedro Creek and adjacent riparian habitat based on impact footprints to be determined in coordination with the City.

Task 6 City Permit Requirement
Consultant has been working with City Public Works and Planning to determine the required permitting necessary for future permanent projects associated with the temporary emergency repairs. For projects that are not associated with a larger project and require grading and grubbing activities, a Grading and Grubbing permit may be required pursuant to Goleta Municipal Code Title 17 Zoning Part IV – Regulations Applying to Multiple Districts Chapter 17.24 General Site Regulations. Consultant understands that the emergency project was issued an emergency permit and based on Standard Condition 1, Public Works must apply for a regular permit within 30 days of issuance of the emergency permit, if needed. This task is assumed to require up to eight hours of staff time and any time beyond that may require additional budget.

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Task 7 Agency Coordination
Following submittal, review and approval of the applications by the regulatory agencies typically require at least four to six months, but the process can take up to nine months or longer based on agency staff workloads. Consultant shall maintain regular communication with agency representatives to ensure the project remains a priority and will support the City with any agency requests for additional information, which arise frequently during projects of this nature. We have preliminarily allocated ten hours of labor to address agency coordination and information requests. The actual level of effort will depend on the agencies’ reactions to the project and the nature of comments received and may substantially exceed ten hours if additional plans or studies are requested, or if negotiations are prolonged. If the agencies require preparation of more comprehensive application materials or extensive consultations than assumed above, we will notify you immediately and determine if an amendment to the work scope is necessary.

Task 8 Project Management
This task includes Consultant labor associated with executing the project, including coordination with the City and among the Consultant project team, tracking of deliverables and budget status, and administration. Adherence to Rincon’s Health and Safety and Quality Assurance/Quality Control procedures is also included in this task.

Assumptions
As a general rule, Consultant shall work with the City to identify the most efficient permitting pathway for the project, including avoidance of permit triggers or use of streamlined approvals (i.e., general permits) where feasible. As such, the scope of work described above may be reduced if it becomes apparent based on field conditions that some of the identified tasks can be avoided. Assumptions pertaining to this work program are described below.
• Consultant shall address one round of consolidated comments on each deliverable from the City, to be provided in an electronic, editable format. We assume the comments are fairly minor and we reserve the right to revisit the scope if we receive major comments.
• The City shall provide a project description, including proposed impact zones, laydown areas, equipment, materials, and schedule, and will also provide project plans and georeferenced files denoting the limits of project disturbance. • The biological reconnaissance field survey and the jurisdictional delineation will be conducted in a single field day (up to 6 hours in length) with one biologist. • Focused species-specific protocol and/or presence/absence surveys for regulated resources will not be required.
• The Cultural Resources records search cost will not exceed $600 and, consistent with recent turnaround times will be completed within approximately six weeks.

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• The project shall qualify for coverage under NWP 3.
• If project design details change during the permitting process, additional Consultant effort and cost may be required.
• The City shall provide a signed CEQA Notice of Exemption for the project. • The City shall be responsible for all application fees. • The resource agencies will adhere to typical permit processing timeframes.

Consultant cannot guarantee that permits will be issued within any particular time period.
• If the resource agencies require preparation of more comprehensive application materials or more extensive consultations than assumed above, we will notify you immediately and determine if an amendment to the work scope is necessary. • Permit applications are deemed complete by resource agencies on first submittal.
• Costs have been allocated to tasks based on the above methodology, but specific costs may be reallocated among tasks and/or direct costs within the authorized amount.
• The biological study prepared for the project will be accepted by all applicable agencies, and no further studies, or protocol surveys will be needed. • This scope does not include any other approvals not explicitly listed in the Scope of Work.

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Exhibit B
Schedule of Fees

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EXHIBIT C

FEDERAL CONTRACT PROVISIONS
During the performance of this contract, Rincon Consultants, 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 entering into this contract with the Consultant.

1. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321)

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 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 affirmative steps requirements detailed above do not apply in the case of a noncompetitive procurement made 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 DocuSign Envelope ID: E924EE76-6CC7-415F-80A1-D4AEA2570A4C 93 City of Goleta
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at 2 C.F.R. Part 200, subpart E (“Cost Principles”). In general, costs must (i) be necessary and reaso nable; (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”), except, fo r 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)

B. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts a nd transcriptions as reasonably needed.

C. The Consultant agrees to provide 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 PROVISIO NS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON -FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (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 by the Agency, including the manner by which it will be effected and the basis for settl ement, 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 DocuSign Envelope ID: E924EE76-6CC7-415F-80A1-D4AEA2570A4C 94 City of Goleta
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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 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 shall be paid for unperformed work or mate rials 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 t erminate on the effective date of the Notice of Termination.

If Consultant fails to cure a default as set forth above, the Agency may, by written notice to Cons ultant, terminate this contract for cause, in whole or in part, and specifying the effective date thereof (“Notice of Termination for Cause”). If the termination is for cause, Consultant shall be compensated for that portion of the work or materials 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. The Agency shall be e ntitled to reimbursement for any compensation paid in excess of work rendered or materials provided and shall be entitled to withhold DocuSign Envelope ID: E924EE76-6CC7-415F-80A1-D4AEA2570A4C 95 City of Goleta
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compensation for defective work or other damages caused by Consultant performance of the work.

iv. Additional Termination Pr ovisions. 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 th e 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 con verted to and treated as a termination for convenience. In such event, Consultant shall be entitled to receive only the amounts payable under this Section, and Consultant specifically waives any claim for any other amounts or damages, including, but not l imited 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 includ ing, but not limited to, the right to specific performance.

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i. Consultant will not discriminate against any employ ee 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 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 solicitations 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 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 othe r 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 investiga tion 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' representat ive 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.

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v. Consultant will comply with all provi sions 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 a nd 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, 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 b y 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 protect the interests of the United States.

C. Appendix II to Part 200 (D) – Davis-Bacon Act; Copeland Act: Not applicable to this contract.

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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 app licable 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 material s 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 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 therefor sh all 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 territory), for liquid ated 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 DocuSign Envelope ID: E924EE76-6CC7-415F-80A1-D4AEA2570A4C 99 City of Goleta
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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 forth in paragraph (ii) through (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.

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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.”

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 t o 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 award ing 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 Water 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 DocuSign Envelope ID: E924EE76-6CC7-415F-80A1-D4AEA2570A4C 101
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government wide exclusions in the System for Award Management (SAM), in accordance with the OMB gu idelines 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 Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

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 any lower tier covered transaction it enters into.
iii. This certification is a material representation of fact relie d 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 b ut 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.

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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 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 secti on 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 tha t 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 yea r 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 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, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.

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B. This is an acknowledgement that FEMA financial assistance will be used to fund the contract only. The Consultant will comply with all 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.

E. General and Administrative Expenses And Profit For Time And Materials Contracts/Amendments.

i. General and administrative expense s 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 bor ne 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.

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ATTACHMENT 5

Professional Services Agreement No. 2023-016 and Amendment 1 with Rincon Consultants, Inc.

105
65266.00020\41133457.1
City of Goleta
Public Works Department and Rincon Consultants, Inc.

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Project Name: 2023 Winter Storm Emergency Repair

AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN THE CITY OF GOLETA
AND
RINCON CONSULTANTS, INC.

This AGREEMENT FOR PROFESSIONAL SERVICES (herein referred to as “AGREEMENT”) is made and entered into this ________ day of ______ , 2023, by and between the CITY OF GOLETA, a municipal corporation (herein referred to as "CITY"), RINCON CONSULTANTS, INC., a California Corporation (herein referred to as "CONSULTANT").

SECTION A. RECITALS

1. The CITY has a need for professional services for environmental, permitting, and arborist services related to projects for emergency repair to public property, trees, parks, and other infrastructure caused by severe storms in 2023; 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. Goleta Municipal Code Section 2.10.040(A)(6)(b) allows the City Manager (referenced as “Director of Emergency Services”) to “ obtain vital supplies, equipment and such other properties found lacking and needed for the protection of life and property and to bind the City for the fair value thereof ”; and

4. An emergency exists in the CITY due to the severe storms of 2023 which caused significant damage to roadways and CITY infrastructure. Therefore, it is necessary to the public health and safety that the City Manager immediately authorize the start of work on emergency mitigation measures, subject to ratification by City Council; and

5. The CITY procured these services in compliance with Goleta Municipal Code Section 3.05.260. Goleta Municipal Code Section 3.05.260(G) expressly authorizes the City Manager to declare urgency subject to confirmation by the City Council at its next meeting in order to authorize any purchase of up to $45,000.00 and over. By executing this Agreement, the City Manager declares that there are imminent public health and safety risks due to severe flooding and damage from the 2023 storms; and

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6. The City Manager approved this AGREEMENT pursuant to Goleta Municipal Code section 3.05.070.

SECTION B. TERMS

1. RECITALS INCORPORATED
The recitals above are true and correct and are incorporated herein by reference.

2. 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.

3. DESCRIPTION OF SERVICES
The services to be performed by CONSULTANT are as follows:

Professional Environmental Services shall generally include environmental, permitting and arborist services related to Emergency Storm Damage Repair projects 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”.

4. 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 $44,999 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:

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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 hours worked by personnel classification).

All payments shall be made within 30 days after CITY’s approval of the invoice.

5. 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. 6. 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 Luz “Nina” Buelna 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.

7. TERM, PROGRESS AND COMPLETION
The term of this AGREEMENT is from the date first written above to December 31, 2023, unless term of this AGREEMENT is extended, or the AGREEMENT is terminated as provided for herein.

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8. 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.

9. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY.

Mr. Christopher Julian 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.

Althouse and Meade Darcee Guttilla 805-237-9626

10. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless 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 employees, to CONSULTANT’s contractors or subcontractors, or to the owners of CONSULTANT's firm, which damages, losses, injuries or liability occur during the work required under this AGREEMENT, or occur while CONSULTANT is on CITY property, or which are connected, directly or indirectly, with CONSULTANT's performance of any activity or work required under this AGREEMENT. (b) Defense and Indemnity of Third Party Claims/Liability.

CONSULTANT shall investigate, defend, and indemnify CITY, its elected officials, officers, agents, and employees, 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 liability, automobile, infringement of copyright/patent/trademark, or professional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of CONSULTANT or any of

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CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, or the willful misconduct of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, in performing the services described in, or normally associated with, this type of contracted work. 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 fees, expert witness costs, investigation costs, claims adjusting costs and any other costs required for and related thereto.
(c) No Waiver. CITY does not waive, nor shall 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.

11. 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 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.

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.

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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. 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.

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.

d) Except for professional liability insurance, liability 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 n ot 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 limitation 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.

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12. 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 responsible for any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the described work.

13. 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 plans. 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 charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.

14. 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 termination 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 compensation for actual work performed and charges outstanding at

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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.

15. 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 CONSULTANT 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 performed; 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.

16. 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 respect to all matters covered by this 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 project records for at least two years after termination or final payment under this AGREEMENT.

17. 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 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 waiver 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 invocation of any such right or remedy shall not

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constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.

18. 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.

19. 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.

20. 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.

21. 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, venue shall be in Superior Court of Santa Barbara County.

22. 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.

23. 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.

24. 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

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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.

25. 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.

26. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.

27. 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.

28. 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.

29. 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, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this AGREEMENT.

30. 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.

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31. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

32. 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: Chris Julian, Principal
Rincon Consultants, Inc.
209 East Victoria Street
Santa Barbara, CA 93101

33. 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.

34. 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 “C” and incorporated herein by reference.

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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 Steven Hongola, Vice President

A T T E S T

_____________________________ _____________________________ Deborah Lopez, City Clerk Lacrissa Davis,
Chief Financial Officer

APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY

_____________________________
Megan Garibaldi, City Attorney

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Exhibit A

Scope of Work

This Scope of Work is intended to provide support to the City and shall be completed as needed and as directed by the City. Support shall be provided at several project locations that may include, but not be limited to, Ellwood Beach Drive Drain Repair, San Pedro Creek Westmoreland Place Storm Drain Repair, Ellwood Mesa Access Road and Devereux Creek Culvert Repair, San Rossano and Padova Drain Replacement, and Maria Ygnacio Creek and Bike Path Debris Cleanup at Hollister Overcrossing. For any of these projects, emergency support shall include the following tasks as needed.

Task 1 Field Assessment

The emergency notification (Regional General Permit [RGP] 63) submitted to the U.S. Army Corps of Engineers (USACE) requires a brief description of the project area’s existing conditions and anticipated environmental impacts resulting from the proposed work (amount of dredge or fill material, acreage of disturbance, removal of significant vegetation, loss of habitat, etc.).

Task 2 Emergency Permit Notifications

For emergency work that may result in discharges of dredged or fill material into Waters of the U.S./state a notification under Regional General Permit 63 (RGP 63) shall be submitted to the USACE and the State Water Resources Control Board (SWRCB) and Central Coast Regional Water Quality Control Board shall be notified under the Water Quality Certification for RGP 63. Additionally, for emergency work that may substantially affect the bed, bank, or streambed, the California Department of Fish and Wildlife shall be notified through their Environmental Permit Information Management System (EPIMS). If any repair work occurs in the Coastal Zone, as is envisioned at some of the sites identified by the City, the California Coastal Commission requires an application for an emergency permit to be submitted prior to initiating the activity. The Consultant shall also support the City with their internal emergency permit process, including noticing requirements and hearing support.

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Each notification requires the same general information, broadly summarized below:

x The applicant’s name and contact information,
x The location of the project, illustrated map,
x A brief explanation of why the project qualifies as an emergency, including explanation of the imminent threat to life or property. x A description of methods anticipated to be used to rectify the situation, including photographs, plans, drawings or sketches showing the area to be impacted, and a short narrative describing how the work is to be completed. x A brief description of the existing site conditions and anticipated environmental impacts.

Task 3 Permit Submittal Coordination

The Consultant shall be prepared to develop and submit each permit notification to the respective resource agency on behalf of the City, as directed, and shall be available to field questions from agency staff related to the project. The Consultant shall confirm the approach with the City prior to responding and shall be available for field visits or virtual meetings to help streamline the permitting process. The USACE is required to coordinate with other resources agencies (i.e., Environmental Protection Agency, U.S. Fish and Wildlife Service, State Historic Preservation Officer, etc.) and are required to fully consider any comments received. The USACE may impose terms and conditions to avoid and minimize adverse effects on aquatic resources and may require mitigation to reduce the project’s adverse environmental effects to a minimal level. The Consultant shall support any coordination efforts or provide support on further technical reports such as a mitigation plan.

Task 4 Construction Support

The Consultant shall provide construction monitoring support as directed by the City. The Consultant has biologists, and ISA certified arborists on staff and shall subcontract additional specialists as needed to meet the needs of each project.

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and Meade, Inc. for support with monarch butterfly related items. The Consultant shall provide archaeologists and native American monitors during earth disturbing activities, as required by resource agencies.

Task 5 Project Completion Notifications

The USACE, SWRCB, and CDFW require project completion documentation which includes a summary of the work performed, measures incorporated to protect the environment, and actual impacts sustained, with photo documentation of before/after conditions. The Consultant shall take the lead on completing each completion report in coordination with the City.

Task 6 Project Management and Coordination

This task includes coordination with the Consultant’s project team to efficiently execute this Scope of Work. This task includes financial management and monthly invoicing in the City’s preferred format.

Assumptions

ƒ All tasks will be initiated as directed by the City.
ƒ All agency notification fees will be paid directly to the respective resource agency by the City, unless directed otherwise.
ƒ All materials shall be submitted to the City in draft form and submitted to the resource agencies after City approval.

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EXHIBIT C

1. CONTRACTING WITH SMALL AND MINORITY 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 t o 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:

Consultant shall submit evidence 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 procurement made

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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 and 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”), 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 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)

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 provide 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-

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FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (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 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.

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.

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(“Notice of Termination for Cause”). If the termination is for cause, Consultant shall be compensated for that portion of the work or materials 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. The 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.

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

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a termination for convenience. In such event, Consultant shall be entitled to receive only the amounts payable 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 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.

Chapter 60:

ii. Consultant will, in all solicitations 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

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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 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.

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.

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imposed and remedies invoked as provided in Executive
Order No.11246 of September 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 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 Safety Standards Act:

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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 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 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 territory), 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.

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E. Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:

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FEMA awards under these programs do not meet the
definition of “funding agreement.”

ii. Pursuant to the Federal Water 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.

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as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

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 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.

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.

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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 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:

iii. Information about this requirement, along with the list of EPA- designate item s, is available at EPA’s Comprehensive
Procurement Guidelines web site,
https://www.epa.gov/smm/comprehensive-procurement-
guideline-cpg-program.

5. MISCELLANEOUS PROVISIONS

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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 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.

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.

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.

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City of Goleta
Amendment No. 1 to Agreement No. 2023-016

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AMENDMENT NO. 1

TO A PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF GOLETA
AND

RINCON CONSULTANTS, INC
This Amendment No. 1 to the Professional Service Agreement by and between the City of Goleta, a municipal corporation (“City”) and Rincon Consultants, Inc (“Consultant”) dated March 30, 2023 (“Agreement,” Agreement No. 2023-016) is made on this BBBBBday ofBBBBB, 2023.

SECTION A. RECITALS
This Agreement is for the Professional services for environmental permitting, and arborist in conjunction with 2023 Winter Storms Services; and The Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed forty-four thousand, nine hundred and ninety-nine dollars ($44,999); and
The parties desire to amend the Agreement so as to provide for additional compensation in the amount of $214,000 for continued task; and City Manager approved this Amendment No.1, on thisBBBBday ofBBBB, 2023.

SECTION B. AMENDED TERMS
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:

1. Subsection (a) of Section 3. COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of $214,000 and to read in its entirety:
(a) Maximum and Rate . The total compensation payable to CONSULTANT for the services under this AGREEMENT SHALL
NOT EXCEED the sum of two hundred fifty-eight thousand nine hundred ninety-nine ($258,999) (herein "not-to-exceed amount") and shall be earned as the work progresses.

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Amendment No. 1 to Agreement No. 2023-016

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set forth in that exhibit shall be binding upon CONSULTANT until December 31, 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.

2. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect
In concurrence and witness whereof, this Amendment No. 1 has been executed by the parties effective on the date and year first above written.

CITY OF GOLETA CONSULTANT
____________________________ ______________________________ Robert Nisbet, City Manager Steven Hongola, Vice President ATTEST:
_____________________________ ______________________________ Deborah Lopez, City Clerk Lacrissa Davis,
Chief Financial Officer
APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney

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ATTACHMENT 6

Amendment No. 1 to Agreement No. 2023-031 with Mark Crane’s Tree and Arborist Services 139

City of Goleta
Amendment No. 1 to Agreement No. 2023-031

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Goleta City CouncilJuly 18, 2023

Goleta City Council
July 18, 2023