Goleta City Council
September 19, 2023

Agenda Item A.8

CPMS CONSENT CALENDAR
Meeting Date: September 19, 2023
TO: Mayor and Councilmembers
FROM: Matthew R. Fore, General Services Director
SUBJECT: Amendment No. 2 to Agreement with Holmes Structures for Professional Services Related to Capital Improvements at the Goleta Community Center
RECOMMENDATION:

Authorize the City Manager to execute Amendment No. 2 to Agreement No. 2022-070 with Holmes Structures for professional design services and additional project support for the Goleta Community Center Seismic Improvement Project, increasing the contract authority by $50,000, for a total not-to-exceed amount of $133,500 and extending the termination date to June 30, 2024.

BACKGROUND:

On July 29, 2022, the City Manager executed professional services agreement 2022- 070 with Holmes Structures (Holmes) to provide professional design services for the seismic retrofit of the Goleta Community Center. Construction of the project began in late May of 2023 and is still underway. Holmes provided engineering services, prepared bid and contract documents, engineering cost estimates and has responded to several requests for information during construction.

DISCUSSION:

During construction, several design changes were required to implement the seismic retrofit on the nearly 100-year-old Goleta Community Center, which outstripped the original contract amount. The recommended contract amendment will ensure Holmes’ involvement in the project until construction is completed, currently forecast for late Fall of 2023.

FISCAL IMPACTS:

Sufficient budget exists in CIP Project 9067 to cover the cost of the amendment .

Therefore, Staff is not requesting additional appropriations with this Council action. 1 Meeting Date: September 19, 2023

ALTERNATIVES:

The City Council may elect to not authorize the proposed contract amendment and provide staff alternative direction. However, doing so would result in significant construction delays.

Reviewed By: Legal Review By: Approved By:

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

ATTACHMENTS:

1. Amendment No. 2 to Professional Services Agreement No. 2022-070

2. Amendment No. 1 and Professional Services Agreement No. 2022-070 2 ATTACHMENT 1

Amendment No. 2 to Professional Services Agreement No. 2022-070 with Holmes Structures
3 City of Goleta
Amendment No. 2 to Holmes Structures Agreement No. 2022-070

AMENDMENT NO. 2

TO A PROFESSIONAL DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF GOLETA
AND

HOLMES STRUCTURES

This Amendment No. 2 to the Professional Design Services Agreement by and between the City of Goleta, a municipal corporation (“City”) and Holmes Structures, a corporation (“Consultant”) dated July 29, 2022 (“Agreement,” Agreement No. 2022-070) is made on this ______ day of _________ 2023.

SECTION A. RECITALS

1. This Agreement is for the purpose of providing professional design services for Capital Projects at Goleta Community Center; and

2. This Agreement has been amended to provide for additional compensation, additional tasks, and federal requirements and contract provisions (Amendment No. 1); and

3. The Agreement currently provides for the total compensation amount not to exceed eighty-three thousand five hundred dollars ($83,500); and

4. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of fifty thousand dollars ($50,000) for continued tasks to advise City and City contractors on issues that may arise or tasks related to project construction and post-construction documentation; and

5. The parties desire to retroactively amend this Agreement so that this Amendment is effective as of June 30, 2023, and the term of the Agreement extends to June 30, 2024; and

6. The City Council approved this Amendment No. 2 on this ____ day of __________ 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 $50,000 and to read in its entirety:
a) Maximum and Rate. The total compensation payable to
CONSULTANT by CITY for the services under this AGREEMENT DocuSign Envelope ID: 77A45754-B89A-4B53-AD34-C81EF3CDE05D 4 City of Goleta
Amendment No. 2 to Holmes Structures Agreement No. 2022-070

SHALL NOT EXCEED the sum of $ 133,500 (One hundred thirty-three thousand five hundred) (herein “not-to-exceed”) 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 June 30, 2023, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice o f 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 12 months, through June 30, 2024.

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

DocuSign Envelope ID: 77A45754-B89A-4B53-AD34-C81EF3CDE05D 5 City of Goleta
Amendment No. 2 to Holmes Structures Agreement No. 2022-070

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 Nina Mahjoub, Principal

ATTEST:

Deborah Lopez, City Clerk Denny Kwan, Principal

APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY

Scott Shapses, Deputy City Attorney

DocuSign Envelope ID: 77A45754-B89A-4B53-AD34-C81EF3CDE05D 6 ATTACHMENT 2

Amendment No. 1 and Professional Services Agreement No. 2022-070 with Holmes Structures
7 City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

AMENDMENT NO. 1

TO A PROFESSIONAL DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF GOLETA
AND

HOLMES STRUCTURES

This Amendment No. 1 to the Professional Design Services Agreement by and between the City of Goleta, a municipal corporation (“City”) and Holmes Structures, a corporation (“Consultant”) dated July 29, 2022 (“Agreement,” Agreement No. 2022-070) is made on this ______ day of _________ 2022.

SECTION A. RECITALS

1. This Agreement is for the purpose of providing professional design services for Capital Projects at Goleta Community Center; and

2. The Agreement currently provides for the total compensation amount not to exceed thirty thousand dollars ($30,000); and

3. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of fifty-three thousand five hundred dollars ($53,500) for additional tasks; and

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

5. 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

6. The parties desire to amend the Agreement so as to add Section 32 – Federal Requirements and Appendix D – Federal Contract Provisions to address the use of federal funding related to the Seismic Improvement and Americans with Disabilities Act Improvement Projects at the Goleta Community Center; and

7. The City Council approves this Amendment N o. 1, on this ____ day of __________ 2022.

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 $53,500 DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 October
2022-070.1
21 October
21 8

City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

and to read in its entirety:
a) Maximum and Rate. The total compensation payable to
CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $83,500 (Eighty-three thousand five hundred) (herein “not -to-exceed”) 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 June 30, 2023, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT for all work described under this AGREEMENT.

2. 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.

3. This Agreement is amended to add in its entirety:

Section 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 t he provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.

4. This Agreement is amended to add in its entirety:

APPENDIX D – FEDERAL CONTRACT PROVISONS
DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 9 City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

During the performance of this contract, Holmes Structures (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 sm all 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 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.

DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 10 City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

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 repr esentatives 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 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)

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, t hen the following termination clauses shall apply. If the contract is for more than the simplified acquisition threshold (see 2 C.F.R. § 200.88) at the time the contract is executed and does not provide for administrative, contractual, or legal remedies in instances where Contractor violates or breaches the terms of the contract, then the following termination clauses shall apply and have precedence over the contract. Otherwise, the following termination clauses shall not be applicable to the contract.

i. Termination for Convenience. The Agency may, by written notice to Consultant, terminate this contract for convenience, in whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof (“Notice of Termination for Convenience”). If the termination is for the convenience of the Agency, the Agency shall compensate Provider for work or materials fully and adequately provided through the effective date of termination.

No amount shall be paid for unperformed work or materials not provided, including anticipated profit. Consultant shall provide documentation deemed DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 11 City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

adequate by the Agency to show the work actually completed or materials provided by Consultant prior to the effective date of termi nation. 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 e ffective 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 t he 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 mat erials 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 convenien ce, 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, doc uments, 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 the Agency’s termination of this contract. The Agency shall not be liable for any cost s other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed work or materials not provided and shall not be entitled to damages or compensation for termination of work or supply of materials. If Agency terminates this contract for cause, and it is later determined that the termination for cause was wrongful, the termination shall automatically be converted to and treated as a termination for convenience. In such event, Consultant shall be entitled to receive only the amounts payable under this Section, and Consultant specifically waives any claim for any other amounts or damages, including, but not limited to, any claim DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 12 City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

for consequential damages or lost profits. The rights and remedi es 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 Opportu nity,” 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 ori gin. 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 b ehalf 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 empl oyee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with Consultant‘s legal duty to furnish information.

iv. Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 13 City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

v. Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

vi. Consultant will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

vii. In the event of Consultant’s noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No.11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies inv oked 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 beco mes 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 DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 14 City of Goleta
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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 unsan itary, 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 c ontracting 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 c ontract 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 DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 15 City of Goleta
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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 Unde r 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 Publi c 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).

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, DocuSign Envelope ID: 2EA3BC95-8286-4371-A6D8-7BBE9A175898 DocuSign Envelope ID: CA0906C3-62CC-4F8E-876A-0D1D0DF91AD5 16 City of Goleta
Amendment No. 1 to Holmes Structures Agreement No. 2022-070

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 agre es 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 transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

ii. Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these 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.

iv. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal program s. 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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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 f iled 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 organizatio n 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 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 s chedule; 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, regu lations, executive orders, FEMA policies, procedures, and directives.

C. Consultant acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.

D. The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the Agency, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.

E. General and Administrative E xpenses 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.

5. 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 Nina Mahjoub, Principal

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ATTEST:

Deborah Lopez, City Clerk Denny Kwan, Principal

APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY

Winnie Cai, Assistant City Attorney

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EXHIBIT A-1

SCOPE OF WORK

CONSULTANT performed design work and developed construction documentation for Seismic Improvements at the Goleta Community Center. The City is now working to obtain building permits and entitlements and is preparing pro curement and contract documents to commence the work.

For these next steps, the City will need assistance from CONSULTANT in the following capacity:

1) Under a separate agreement, CITY has contracted with Project Partners, Inc. to develop project bid and contract documents. CONSULTANT’S plans and specifications are a primary component of the ultimate bid package. From time to time, at City’s request, CONSULTANT will collaborate with Project Partners, Inc. to provide design advice and analysis and review of draft documents.

2) Respond to plan check comments from permitting agencies.

3) Provide regularly updated engineering and construction cost estimates to reflect current market prices and construction start dates.

4) Review, revise and develop design and documentation as needed in relation to building permits, grant requirements, procurement , construction, plan and specifications, bid documents, and contract documents.

5) Advise City and City contractors on issues that may arise or tasks related to project construction, and post-construction documentation.

Work performed by CONSULTANT in this capacity and under this Agreement will be billed pursuant to the Schedule of Fees set forth in Exhibit B.

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Project Name: Design Services for Capital Projects at Goleta Community Center

AGREEMENT FOR PROFESSIONAL DESIGN SERVICES

BETWEEN THE CITY OF GOLETA
AND

HOLMES STRUCTURES

This AGREEMENT FOR PROFESSIONAL DESIGN SERVICES (herein referred to as “AGREEMENT”) is made and entered into this ________ day of ______ , 2022, by and between the CITY OF GOLETA, a municipal corporation (herein referred to as " CITY"), and HOLMES STRUCTUR ES, a Califo rnia Registered Partnership (herein referred to as "CONSULTANT").

SECTION A. RECITALS

1. T he CITY has a need for professional design services for capital projects at the Goleta Community Center; and

2. T he 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. T he CITY procured these services in compliance with Goleta Municipal Code Section 3.05.260; and,

4. T he City Manager approved this AGREEMENT pursuant to Goleta Municipal Code section 3.05.070.

SECTION B. TERMS

1. RE TENTION 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, a nd facilities to properly and timely perform said services.

2. DE SCRIPTION OF SERVICES
Professional Design Services in conjunction with Goleta Community Center Capital Projects shall generally include design services as more particularly set forth in the S cope of Work, attached as Exhibit "A," and incorporated herein
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3. C OMPENSATION AND PAYMENT
(a) Maximum and Ra te. The total compensation payable to CONSULTANT by CITY for the services under this AGREEMEN T SHALL NOT EXCEED the sum of $30,000.00 (herein "not to exceed amou nt"), 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 i n CONSULTANT's Schedule of Fees marked Exhibit "B," attached and incorporated herein. Th e rates and expenses set forth in that exhibit shall be binding upon CONSULTANT until June 30, 2023, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 ( CITY is to be given 60 d ays notice of any rate increase request), provided the not to exceed amount is the to tal compensation d ue CONSULTANT for all work described under this AGREEMENT.
(b) P ayment . CONSULTANT shall provide CITY with written verification of the actual compensati on earned, which written verification shall be in a form satisfactory to CITY 's Project M anager, as describ ed 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.

4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY au thorized extra servi ces, not reasonably included within the services described in Sec tion 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 s ervices 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 agr eement. Any compen sation for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section 3.

5. CI TY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be acc omplished 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 Matthew Fore, G eneral Services Director. Project Manager shall have the authority to act on behalf of the CITY in administering this AGREEMENT but shall not be authorize d to extend the term of the AGREEMENT or increase the not to exceed amount.

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6. TERM, PROGRESS AND COMPLETION
The term of t his AGREEMENT is from the date first written above t o June 30, 2023, unless 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 ins urance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY's Project Manager.

7. O WNERSHIP OF DOCUMENTS
All drawin gs, designs, data, photographs, reports and other documentation (other than CONSULTANT 's drafts, notes and int ernal 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 his AGREEMENT, or at any earlier or later time when requested by CITY . CITY agrees to hold CONSULTANT , its employees, and its subconsultants harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans and specifications for purposes other than tho se described in this AGREEMENT, unless written authorization of CONSULTANT is first obtained.

8. PER SONAL SERVICES/NO ASSIGNMENT/ SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY. Nina Mahjoub, P.E. LEED AP is deemed to be specially experienced and is a key member of CONSULTA NT's firm, and shall be di rectly involved in the performance of this wor k. 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 t erminate this AGREEMENT. This AGREEMENT may no t be assigned or subcontracted without the City Manager’s prior written consent , except in regard to the following subcontractors:
• Page & Turnbull, John Lesak, Historic Preservation Consultation • Cumming, Trevor Shulters, Cost Estimation Services
• Fugro, Gregory S. Denlinger, Geotechnical Engineering Services

9. HO

LD HARMLESS AND INDEMNITY
(a) Indemnification and Def ense for Prof essional Service. To the fullest extent permitted by law, Consultant shall indemni fy, defend and hold harmless the CITY and any and all of its officials, employees and agents (“Indemnified Parties”) from and agai nst any and all claims, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, to the extent DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 24 City of Goleta
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they arise out of, pertain to, or relate to th e negligence, recklessness, or willful misconduct of the CONSULTANT. CONSULTANT’s duty to defend shall consist of re imbursement 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 da mage is incurred by way of settlement or resolution without a court, jury or arbitr ator 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 defe nse 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 o r omission of CONSULTANT, but which is not a design professional serv ice, CONSULTANT shall defend, indemnify, and hold harmless CITY, its officials, emplo yees, and agents (“Indemnified Parties”) from and against any and all damages, costs, expenses (including reasonable attorney fees and exper t witness fees), judgments, settlements, and/or arbitration awards, whether for personal or bodily injury, property damage, or e conomic 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 shal l 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 pl aced with insurers authorized to do busi ness in the State of California with an A.M. Best and Company rating of A - or better, Class V II or better, or as otherwise approved by CITY.

Insurance shall include the following (or broader) coverage:
a) Insurance Services Office Commercial Liability cov erage “occurrence” form CG 00 01 or its exact equivalent with an edition date prior to 2004 and wi th minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate.
b) Insu rance Services Office form number CA 00 01 or equivalent covering Automob ile Liability, including hired and non- owned automobile liability with a minimum limit of $ 1,000,000 per accident.

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If the Service Provider owns no vehicles, this requirement may be satisfied by a non- owned and hir ed auto endorsement to Service Provider’s commercial general liability policy.
c) Workers’ Compensation insurance complying with California worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 per accident or disease.
d) Professional liability insurance that covers the services to be performed in connection with this agreement, in the min imum amount of $1,000,000 per claim.

Liability insurance policies r equired 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 w ork 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 oper ations shall be provided eith er 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 t o each insured against whom a claim is m ade 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, continui ty date, or r etroactive date must be bef ore the effecti ve 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 profes sional liability insurance, l iability coverage shall be primary and non- contributing with any insurance maintained by CITY.
e) Evidence of coverage (including the workers’ compensation and employer’s liability policies) shall provide that coverage shall not b e suspended, voided, canceled or reduc ed in coverage or in limits except after 30 days’ prior written notice has been given to CITY .

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Such provision shal l not include any limitation of liability of the insurer for failure to provide such notice.
f) No li ability insurance coverage provided to c omply 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 da ys of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) T here 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, a ctual 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 r equiring the insurance set forth herein. In the event a ny 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 neces sary 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 ar ising 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 moni tor 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 work ers compensation insurance, withholding t axes, 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 er rors in the work that may be dis closed during CITY's review of CONSULTANT 's report or plans. Should CONSULTANT fail to make DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 27 City of Goleta
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such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be charged to CONS ULTANT 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 c ause, 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 w ork 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. AC CEPTANCE 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 t o C ONSULTANT for anything done, f urnished, 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 c heck.

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 provid ed and/or work performed; nor shall such a pproval or payment be deemed to be an assumpti on of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT , its employees, subcontractors, agents and consultants.

15. AUDIT OF RECORDS
At any time during normal bus iness 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 fina ncial records, time sheets, work progress reports, invoices, bills and project records for at least two years after termination or final payment under this AGREEMENT.

16. W AIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the other party, irrespec tive of the length of DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 28 City of Goleta
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time for which such failure continues, shall not constitute a waiver of such p arty'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 wit h 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 b reach and/or period of time specified. A ll 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 el ection of remedies with respect t o any ot her 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 p arties.

Wherever required by the cont ext, 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 situation s 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 interpret ed 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
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CONSULTANT shall not discrimina te on the basis of race, color, gender, gender identity/expression, pregnancy, sexual orientation, disa bility, marital status, or any other characteristic protected under applicable federal or state law.

22. Taxpayer Identification Number
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, Form W -9 ( Rev. October 2018), as issued by the Internal Revenue Service.

23. Non-Appropriation of Funds
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shall cover only those costs incurred up to the conclusion of the current fiscal year.

24. Modification of AGREEMENT
The tasks described in this AGREEMENT and all other terms of this AGREEMENT may be mod ified only upon mutual written consent of CITY and CONSULTANT.

25. U se 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 per formance 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 AGREEM ENT on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 30 City of Goleta
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assigns, principals, partner s, joint ve nturers, insurance carriers and any ot hers 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 writi ng, 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 AGRE EMENT 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.

31. NOTICES
Any notice required to be given hereunder s hall be deemed to have been given by depo siting said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Attention: Michelle Greene, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: A ttention: Nina Mahjoub, P.E. LEED AP
Holmes Structures
523 West 6th Street, Suite 1122
Los Angeles, CA 90014

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.

In concurrence and witness whereof, this AGREEMENT has been executed by the parties effective on the date and year first above written.

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CITY OF GOLETA CONSULTANT

_____________________________ _____________________________ Michelle Greene, City Manager Nina Mahjoub, Principal

ATTEST

_____________________________ _
____________________________
Deborah Lopez, City Clerk Denny Kwan, Principal

APPROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY

_____________________________
Winnie Cai, Assistant City Attorney

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EXHIBIT A

SCOPE OF WORK

CONSULTANT performed design work an d developed construction documentation for Seismic Improvements at the Goleta Community Center. The City is now working to obtain building permits and entitlements and is preparing procurement and contract documents to commence the work.

For these next steps, the City will need assistance from CONSULTANT in the following capacity:
1) Under a separate agreement, CITY has contracted with Project Partners, Inc. to develop project bid and contract documents. CONSULTANT’S plans and specifications are a primary component of the ultimate bid package. From time to time, at City’s request, CONSULTANT will collaborate with Project Partners, Inc. to provide design advice and analysis and review of draft documents. 2) Responding to plan check comments from permitting agencies. 3) Revising d esign and documentation as needed in relation to b uilding permits, grant requirements, procurement and construction.
4) Advising City and City contractors on issues that may arise or tasks related to project construction, and post-construction documentation.

Work performed by CONSULTANT in this capacity and under this Agreement will be billed pursuant to the Schedule of Fees set forth in Exhibit B.

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General Services Department and Holmes Structures

EXHIBIT B

SCHEDULE OF FEES
Work performed by Consultant shall be bi lled on a t ime and materi als basi s pursuant to the rate schedule below. Where discrete deliverables are known, City Staff, or City’s contracted project manager, Project Partners, Inc. may issue task orders to be billed at the rates below.

All time and materials are charged at consultant's current standard hourly rates.

Consultant's standard hourly rate schedule is:

Subcontractors
Work p erformed by Holmes’ sub-Consultant shall be billed on a t ime and materials basis pursuant to the rate schedule below. Where discrete deliverables are known, City Staff, or City’s contracted project manager, Project Partners, Inc. may issue task orders to be billed at the rates below.

Page & Turnbull – A rchitectural & Historic Consulting

• Principal in Charge: $260.00
• Project Manager: $190.00
• Project Architect: $150.00
• Cultural Resource Planner: $145.00

Fugro Western US – Geotechnical Services
Analysis, Consultation and Report Preparation
Fees for Fugro professional services, including project administration and travel time between home office and project locations, are based on the time of professional, t echnical, and other support personnel directly applied to the project. Rates for overtime (other than as described below), weekend work, and Principal $275-$325 Structural Designer $140
Associate Principal $220-250 Senior Revit Specialist $165 Senior Engineer $185-200 Revit Specialist $140 -$160
Project Engineer $150-170 Administration $85

DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 34 City of Goleta
General Services Department and Holmes Structures

emergency response will be quot ed upon request. Perso nnel participating in judicial proceedings, whether it be exp ert of witness testimony, delivery of depositions, consultation to legal counsel, or preparation for such, will be billed at $400 per hour. Rates for overtime (other than as described below), weekend work, and emergency response will be quoted on request.

PROFESSIONAL STAFF HOURLY RATE Staff Professional……………………………………………………………………………………………………………………$135 Senior Staff Professional...………………………………………………………………………………………………………$155 Project Professional...…………………………………………………………………………………………………………..…$170 Senior Project Professional...………………………………………………………………………………………….………$180 Senior Professional...………………………………………………………………………………………………………………$200 Associate Professional...…………………………………………………………………………………………………………$215 Principal Professional...……………………………………………………………………………………………………..……$250 Vice P resident / Senior Principal Professional...……………………………………………………………………..$300

TECHNICAL AND OFFICE STAFF HOURLY RATE Office Assistant...………………………………………………………………………………………………………………………$78 Technical Assistant/Records Coordinator...……………………………………………………………………………...$95 Word Processor/Clerical...………………………………………………………………………………………………………$100 Laboratory Technician...………………………………………………………………………………………………………....$110 Graphics Illustrator...………………………………………………………………………………………………………………$125 HSE Manager...………………………………………………………………………………………………………………………$180 Engineering Field Technician – Non-Prevailing Wage, Straight Time……………………………………$125 Engineering Field Technician – Prevailing Wage, Straight Time……………………………………………$145 Overtime Rates for Technical and Office Staff
a. Saturdays or over 8 hours/day during weekdays…………………………………...1.5 x straight time b. Saturdays over 8 hours or Sunday/holidays……………………………………………2.0 x straight time c. Swing or graveyard shift premium………………………………………………………….1.3 x straight time

OTHER DIRECT CHARGES
Outside Services..…………………………………………………………………………….................................Cost Plus 15% Prevailing Wage/Certified Payroll..……………………………………………………..…………………….….....$200/day Automobiles..……………………………………………………………………………………....IRS Standard Mileage Rate Basic Field Vehicle..…………………………………………………………………………….......................................$100/day Field Vehicle with Sampling and Logging Equipment..…………………………………………………..$200/day IMASW Equipment..…………………………………………………………………………….....................................$400/day Topcon IS Imaging Station / DGPS..……………………………………………………………………………….$200/day Rope Safety Equipment..……………………………………………………………………………………………......$165/day Toughbook Computers..……………………………………………………………………………..............................$50/day Workstation Applications..……………………………………………………………………………..........................$50/day Generator..……………………………………………………………………………..........................................................$25/day Trench Supplies..……………………………………………………………………………...............................................$5/foot Plotter Generated Maps..……………………………………………………………………………............................$5/sheet Copies (photocopy) ..…………………………………………………………………………….................................$15/sheet

DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 35 City of Goleta
General Services Department and Holmes Structures

HARDWARE/SOFTWARE INTERPRETIVE PROGRAMS
SMT/Fledermaus.………………………………………………… ……………………………………………………………$25/hr GIS/ACAD.…………………………………………………..……………………………………………………………………...$25/hr Finite Element/Finite Different Packages.……………………………………………………………………………$25/hr Seismic Data Processing.…………………………………………………………………………………………………….$25/hr

LABORATORY AND SPECIALTY TESTING AND EQUIPMENT See Separate Schedules

*Outside services include subcontracted services, outside consultants, outside laboratory testing, equipment rentals, outside reproduction and photographic work, travel and subsistence, field supplies, and any other out of pocket expenses directly related to the project.

Fee Schedule is subject to periodic revision, typically at the first of the year.

DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 36 City of Goleta
General Services Department and Holmes Structures

2020 Western US Projects
Laboratory and Materials Testing Fee Schedule
Classification Tests
Moisture Content (ASTM D2216) ............................................$ 28 Moisture and Density (ASTM D2937).....................................$ 50 - add for shelby tube with above tests........................$ 25 Reaction with HCl (ASTM D2488).............................................$ 10 Irregular Shape Density (USACE) ..............................................$ 55 Plastic and Liquid Limits, wet prep, 3 point LL
(ASTM D4318) ...................................................................................$ 180 Specific Gravity (ASTM D854).....................................................$ 130 Organic Content (ASTM D2974) ...............................................$ 100 Sand Equivalent (ASTM D2419) ................................................$ 95 Sieve Analysis, up to 8 sieves (ASTM D422)........................$ 120 - add for each additional sieve in stack....................... 10 - add for coarse fraction (>#4 sieve) ............................$ 80 Percent Passing #200 Sieve (ASTM D1140) ........................$ 85 Hydrometer and Sieve (ASTM D422) .....................................$ 175 Processing Clay Shales (USACE)................................................$ 75 Tests listed above include classification (ASTM D2488 or D2487)
Volume Change Tests
Incremental Consolidation (ASTM D2435)
- up to 8 load increments...................................................$ 400 - additional load increment...............................................$ 50 Constant Rate of Strain Consolidation
- to 16 ksf max (ASTM D4186).........................................$ 425 - with intermediate rebound and reload....................$ 500 Expansion Index (ASTM D4829/UBC 29-1)..........................$ 235 Swell and Collapse Tests
- wet after load, 4 point (ASTM D4546-A) .................$ 600 - wet after load, 1 point (ASTM D4546-B) .................$ 160 - load after wet, 1 point (ASTM D4546-C) .................$ 200 Static Strength Tests
Hand Penetrometer.........................................................................$ 15 Torvane..................................................................................................$ 25 Miniature Vane (ASTM D4648)..................................................$ 50 Miniature Vane with Residual ....................................................$ 55 Unconfined Compression
- *Consolidated Undrained with pore pressure
measurements, per point (ASTM D4767)............................. $ 500 - *Consolidated Drained, per point (USACE)............ $ 650 Direct Shear, 3 points, (ASTM D3080).................................... $ 450 - add for residual strength, per point .......................... $ 50 Point Load Index (ASTM D5731) .............................................. $ 60 *Multiply single point rate by 2 for up to 3 stages of
consolidated, drained or undrained staged triaxial tests Hydraulic Conductivity Tests
Constant Head, 2-3” Dia. (ASTM D2434).............................. $ 290 Constant Head, 6” Dia. Includes remolding
(ASTM D2434).................................................................................... $ 375 Flexible Wall (ASTM D5084)........................................................ $ 400 - add for additional effective stress .............................. $100

Clay Properties & Chemistry Tests
Double Hydrometer (ASTM D4221) ...................................... $ 290 Pinhole Dispersion (ASTM D4647) ......................................... $ 270 Crumb Test (ASTM 6572) ........................................................... $ 45 X-Ray Diffraction ........................................................................... $ 300 Soil Chemistry for Corrosion
(pH, chloride, sulfate, resistivity) .....................................$ 250 pH (soil or water)................................................................... $ 55 Earthwork Tests
Standard Proctor, 4 points (ASTM D698)
- 4-inch mold............................................................................ $ 210 - 6-inch mold............................................................................ $ 245 Modified Proctor, 4 points (ASTM D1557)
- 4-inch mold............................................................................ $ 250 - 6-inch mold............................................................................ $ 275 California Impact Compaction (Cal 216)............................... $ 250 Moisture - Density Check Point

Maximum ........................................................... $ 315 Minimum ............................................................ $ 135 R-Value (ASTM D2844/Cal 301) $ 320
Treated Soil ........................................................ $ 335 Aggregate Base .................................................. $ 345

- Soil (ASTM D2166) .......................................... $ 110 - Rock, excludes strain (ASTM D7012-C) ............ $ 140 - Rock, with axial strain (ASTM D7012-D) ........... $ 275 - add for radial strain ........................................... $ 125 Triaxial Compression
- Unconsolidated Undrained (ASTM D2850) ....... $ 155
- add for back pressure saturation....................... $ 100

- 4-inch mold ....................................................... $ 80 - 6-inch mold ....................................................... $ 105 - add for rock correction for above ....................... $ 90 Cement/ Lime Treatment
- Moisture/Density Relation (ASTM D558) $

280
- Wet & Dry Cycles, 2 spec., (ASTM D559) ......... $ 510 - Strength, w/ molding, (ASTM D1633) ................ $ 95 - Est. pH for Stabilization, (ASTM D6276) ........... $ 210 Index Density and Unit Weight (ASTM D4253)

DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 37 City of Goleta
General Services Department and Holmes Structures

Base with Admixture ................................ ......................... $ 360 CBR, per point (ASTM D1883) ................................ ................. $ 340 Proctor Compaction with above CBR ................................ ... $ 210 Surcharge for Admixture ................................ ........................... $ 50 Sample Preparation for Soil with PI>20 .............................. $ 55 Aggregate Tests
Sieve Analysis ( A STM C136/Cal202)
- Coarse Aggregate ...............................................................$ 80 - add for samples > 5000g................................................$ 30 - Fine Aggregate ............. ................................................. . .....$ 120 Sand Equivalent (ASTM D2419/Cal 217)...............................$ 95 Cleanness Value (ASTM C142/Cal 227) .................................$ 150 Durability Index (ASTM C3744/Cal 2 29)
- Coarse Fr action........................................... . .........................$ 140 - Fine Fraction ..........................................................................$ 140 Specific Gravity & Absorption
- Coarse Aggregate (ASTM C127/Cal206) ............. ...$ 80 - Fine Aggregate (ASTM C128/Cal 207) .. . .................$ 125 % Crushed Particles, per f raction
(ASTM D5821/Cal 205) ..................................................................$ 100 Flat & Elongated Particles (ASTM D4791)............... .............$ 180 Uncompacted Void Content of Fi n e Aggregate
(AASHTO T304)..................................................................................$ 200 Moisture Content (ASTM C566) ...............................................$ 60 Sulfate Soundness, per fraction
(ASTM C88/Cal 214)....... . ................................................................$ 125 L.A. Abrasion 500 rev. (ASTM C131/Cal 211)......................$ 215 - add for 100 rev .............................................. ............. $ 50 Percent Passing #200 Sieve (AST M C117) ..........................$ 85 Unit Weight and Voids (ASTM C29/Cal 212) ......................$ 95 Organic Impurities (ASTM C40).................................................$ 50 Asphalt Concrete Tests
Stabilometer Value, 3 briquettes
(ASTM D156 0 /Cal 366) ..................................................................$ 350 Lab Compacted Unit Weight
- each briquette (Cal 304/Cal 308) ............................... $ 110 - surcharge for rubberized AC ................................ ....... $ 20 Unit Weight of A C Cores (Cal 308) ................................ ........ $ 65 Theoretical Max. S.G. (Ca l 309) ................................ ................ $ 150 Extraction and Sieve (ASTM D2172/D5444) ....................... $ 315 Asphalt Content by Ignition (Cal 382) ................................ .. $ 150 Calibration Curve for Ignition Test ................................ ......... $ 350 Slurry Wet Track Abrasion (ASTM D3910) .......................... $ 95 Concrete, Ma sonry, and Steel Tests
Concrete Compression
- Each 6 x12 or 4x8 Cylinder (ASTM C39).................... $ 35 - Add for Elastic Modulus (ASTM C469) ..................... $ 185 - Hold or Additional Test.................................................... $ 35 - Li ght Weight Concrete (CTM 548).................... . ......... $ 40 Cylinder Molds with Lids .............................................................. $ 8 Compression of Core (ASTM C42)........................................... $ 90 Shrinkage of Mort ar and Concrete 3 Bars
(ASTM C157)................. . ........................................................... $ 440 Unit Weight of Concrete Cylinders
- Air - Dried.................................................................................. $ 30 - Oven - Drie d ............................................... . ............................ $ 40 Shotcrete Panel, Lab Coring & Compression
- 3 cores (ASTM C42)............................................................ $ 375 Grout and Mortar Compression (ASTM C39)
- Grout . ............................................... . ........................................ $ 45 - Mortar....................................................................................... $ 40 Composite Prism Compression (ASTM E447)
- 8x8 ................................ ................................ .......................... Quote - 8x12 ................................ ................................ ........................ Quote - 8x16 ................................ ................................ ........................ Quote CMU Block Compression (ASTM C140) ................................ .... Quot e CMU Absorption & Moisture (ASTM C140)........................ $ 95 Concrete Moisture Emission Test Kit, each ......................... $ 60 Rebar - Tensile and Bend (ASTM A - 370) ................................ . Quote Miscellaneous Laborat ory Tests and Charges
Sample Remold Surcharge.... . ..................................................... $ 50 Special Processing ................................ ............................... Hourly Rates Extrude Tube Sample and Visually Classify ......................... $ 70 Sample Tube Cutting, each cut ............ ..................................... $ 25 Sample Preparation - Non - Routine ........................................ $ 100 Steel Drum - 55 Gallon with Lid................................................ $ 80 Gas Powered Generator........................... ..................................... $ 80 Shelby Tube with Caps .................................................................. $ 45 Addition of So il Admixtures and Curing............................... $ 95 Capping of Strength Test ................... .......................................... $ 40 W e ight of Roofing Materials (ASTM D2829)...................... $ 50 Density of Sprayed Fireproofing Materials.......................... $ 60 Static Friction Test
- Per Surface Location (ASTM C1028)............. ............. $ 375 Coring Equip/Bit Charge, per h alf day................................... $ 85 Bit Charge - Difficult Materials, per half day....................... $ 100 Specimen End Prep
- Less than 4” Diameter, per cut .............................. $ 12 - 4” to 8” Diameter, per cut ................................ ..... $ 18 Special Capping of Specimen ................................ .................. $ 40 Patc h or Grout Core Hole ................................ .......................... $ 35

DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 38 City of Goleta
General Services Department and Holmes Structures

Photograph of Sample ..................................................................$ 40 Additional Copies of Photographs.................................. .Cost + 15% Local Site Pick up of Laboratory Sample(s)
- within 30-mile radius, up to 200 lbs ..........................$ 85 Notes:
1) Remaining portions of tested samples will be disposed of 60 days after project completion without notice. Untested bulk samples can be returned to client at client's expense or stored at a fee of $15 per bag per month.
2) F ugro USA Land, Inc.’s laboratories are accredited or validated by AASHTO (R-18), Caltrans, USACE, DSA/(LEA).
3) The following are included at NO CHARGE:
a) Visual classification, natural water content and density with all triaxial, direct shear, volume change, and hydraulic conductivity tests.
b) Sample photographs for triaxial, hydraulic conductivity, and PLI tests. 4) Rates for other tests and test variations, including mix designs, can be furnished on request. 5) Rush assignments are subject to a 25% surcharge. Weekend or Holiday test assignments are subject to a 50% surcharge.
6) Testing for contaminated samples (EPA Level C & D) will be invoiced at 1.5 times listed rates. 7) Shipping or other outside costs at cost +15%.
8) Reusable thin-walled tube shipping boxes (ASTM D4220) can be provided at no cost (except for shipping charges) for samples shipped to Fugro’s laboratory for testing. 9) Please contact the laboratory prior to shipping international soils to make proper arrangements and obtain our foreign soil permit.
10) A surcharge of $1 per linear foot of test boring depth will be added to cover the cost of standard engineering field supplies including sample tubes and caps, stakes, etc.

Fee Schedule is subject to periodic revision, typically at the first of the year.

DocuSign Envelope ID: 4FE2DD0D-9343-4A29-8DD5-05127010B0D6 39