Agenda Item A.10
CONSENT CALENDAR
Meeting Date: September 19, 2023
TO: Mayor and Councilmembers
FROM: Charles W. Ebeling, Public Works Director
CONTACT: Melissa Angeles, Assistant Engineer
SUBJECT: Amendment No. 3 to Professional Services Agreement 2021 -026 with Flowers & Associates, Inc.
RECOMMENDATION:
Authorize the City Manager to execute Amendment No. 3 to Professional Services Agreement No. 2021-026 with Flowers & Associates, Inc. for inspection support services, increasing the contract authority by $120,000, for a new total not -to-exceed contract amount of $335,000 and extending the termination date to June 30, 2025.
BACKGROUND:
Public Works Department staff has engaged qualified private consultants to perform a variety of professional services for the City since it was incorporated in 2002. Prior to initiating an agreement for professional services, the City’s purchasing regulations in the Goleta Municipal Code require an open solicitation for necessary services. This is done through the Request for Proposals/Request for Qualifications (RFP/RFQ) process.
Public Works staff selected Flowers & Associates, Inc. (Flowers) from the City’s approved pre-authorized qual ified consultant list to provide on-call inspection services for encroachment permits issued by the Engineering Division.
DISCUSSION:
Table 1 below provides a summary of the history of the original agreement and subsequent contract amendments with Flowers:
1 Meeting Date: September 19, 2023
Table 1: Flowers and Associates Contract History
There continues to be a significant number of Public Works encroachment permits that require inspection outside of normal City business hours. To facilitate these permits, Flowers currently provides on -call inspection services for the City. Public Works is satisfied with the professional services provided by Flowers and is recommending an amendment to their existing professi onal services agreement so that they can continue to provide on-call inspection services.
Public Works staff recommends approval of Amendment No. 3 to Agreement No. 2021- 026 with Flowers , increasing the contract authority by $120,000 for a new total not -to- exceed contract amount of $335,000 and extending the termination date to June 30, 2025 (Attachment 1).
FISCAL IMPACTS:
The execution of this amendment requires no General Fund appropriation as this work is billed and paid by developer deposits . These d eposits are paid in advance of any inspection services being provided.
ALTERNATIVES:
The City Council may elect not to authorize this amendment and direct the Public Works Department to seek statements of qualifications and proposals from additional qua lified firms. Doing so could cause a disruption in after-hours inspection services.
Reviewed By: Legal Review By: Approved By:
___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager
Contract Date Approved Termination
Date
Contract
Authority
Total
Contract
Amount
Original April 20, 2021 June 30, 2021 $45,000 $45,000
Amendment 1 June 15, 2021 June 30, 2022 $85,000 $130,000 Amendment 2 June 21, 2022 June 30, 2024 $85,000 $215,000 Amendment 3 September 20, 2023 June 30, 2025 $120,000 $335,000 2 Meeting Date: September 19, 2023
ATTACHMENTS:
1. Amendment No. 3 to Professional Services Agreement 2021 -026 with Flowers & Associates, Inc.
2. Amendment No. 2, Amendment No. 1, and Professional Services Agreement 2021-026 with Flowers & Associates, Inc.
3 Attachment 1
Amendment No. 3 to Professional Services Agreement 2021-026 with Flowers & Associates, Inc.
4 City of Goleta
Amendment No. 3 to Agreement No. 2021-026
AMENDMENT NO. 3
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
FLOWERS & ASSOCIATES, INC.
This Amendment No. 3 to the Professional Services Agreement by and between the City of Goleta , a municipal corporation (“City”) and Flowers & Associates, Inc. (“Consultant”) dated April 20, 2021 (“Agreement,” Agreement No. 2021-026) is made on this 19th day of September, 2023.
SECTION A. RECITALS
1. T his Agreement is for the on-call traffic control monitoring services for encroachment permit traffic control; and
2. This Agreement was amended on June 15, 2021, to provide additional compensation and extend the agreement term (Amendment No. 1); and
3. This Agreement was amended on June 7, 2022, to provide additional compensation, extend the agreement term, and update Exhibit B “Compensation” to identify new hourly rates (Amendment No. 2); and
4. T he Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed $215,000; and
5. T he parties desire to amend the Agreement so as to provide for additional compensation in the amount of $120,000 for continued tasks; and
6. T he Agreement currently provides in Section 6 for the termination of the Agreement on June 30, 2024; and
7. T he parties desire to amend the Agreement so as to extend the termination of the Agreement to June 30, 2025; and
8. T he Agreement currently provides in Exhibit B-1 entitled “Compensation” the hourly rates; and
9. T he parties desire to amend Exhibit B-1 of the Agreement to identify the new hourly rates, attached as “Exhibit B-2”; and
10. The City Council approved this Amendment No.3, on this 19th day of September, 2023.
SECTION B. AMENDED TERMS
DocuSign Envelope ID: BC4164FD-5435-4201-B14F-2CA46BEBDB74 5 City of Goleta
Amendment No. 3 to Agreement No. 2021-026
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:
1. S ubsection (a) of Section 3 . COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of $120,000 and to read in its entirety:
(a) M aximum and Rate. The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $335,000 (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 -2,"
attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CO NSULTANT until June 30, 2025, 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. S ection 6. TERM, PROGRESS AND COMPLETION of the Agreement is amended to extend the term for an additional year to read in its entirety.
T
he term of this Agreement is from the date first written above to June 30, 2025, 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.
3. This Agreement is amended to delete and replace in its entirety:
Exhibit B-1 “Compensation” with Exhibit B-2 “Compensation” attached hereto and incorporated herein.
4. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect.
DocuSign Envelope ID: BC4164FD-5435-4201-B14F-2CA46BEBDB74 6 City of Goleta
Amendment No. 3 to Agreement No. 2021-026
In concurrence and witness whereof, this Amendment No. 3 has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
____________________________ ______________________________ Robert Nisbet, City Manager Robert A. Schmidt, P.E., Principal
ATTEST:
_____________________________ ______________________________ Deborah Lopez, City Clerk Alan H. Chierici, Vice President
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
DocuSign Envelope ID: BC4164FD-5435-4201-B14F-2CA46BEBDB74 7 City of Goleta
Amendment No. 3 to Agreement No. 2021-026
EXHIBIT B-2
COMPENSATION
DocuSign Envelope ID: BC4164FD-5435-4201-B14F-2CA46BEBDB74 8 Attachment 2
Amendment No. 2, Amendment No. 1, and Professional Services Agreement 2021-026 with Flowers & Associates, Inc.
9 City of Goleta
Amendment No. 2 to Agreement No. 2021-026
AMENDMENT NO. 2
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
FLOWERS & ASSOCIATES, INC.
This Amendment No. 2 to the Professional Services Agreement by and between the City of Goleta, a municipal corporation (“City”) and Flowers & Associates, Inc., a California Corporation (“Consultant”) dated April 20, 2021 (“Agreement,” Agreement No. 2021-026) is made on this 7th day of June, 2022.
SECTION A. RECITALS
1. This Agreement is for the on-call traffic control monitoring services for encroachment permit traffic control; and
2. This Agreement was amended on June 15, 2021 to provide additional compensation and extend the agreement term. (Amendment No. 1.)
3. The Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed $130,000; and
4. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of $85,000 for continued tasks; and
5. The Agreement currently provides in Section 6 for the termination of the Agreement on June 30, 2022; and
6. The parties desire to amend the Agreement so as to extend the termination of the Agreement to June 30, 2024 and
7. The Agreement currently provides in Exhibit B entitled “Compensation” the hourly rates; and
8. The parties desire to amend Exhibit B of the Agreement to identify the new hourly rates, attached as “Exhibit B-1”; and
9. The City Council approved this Amendment No. 2, on this 7th day of June, 2022.
SECTION B. AMENDED TERMS
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:
10 City of Goleta
Amendment No. 2 to Agreement No. 2021-026
1. Subsection (a) of Section 3. COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of $85,000 and to read in its entirety:
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $215,000 (herein "not-to-exceed amount") and shall be earned as the work progresses.
2. Section 6. TERM, PROGRESS AND COMPLETION of the Agreement is amended to extend the term for an additional two years to read in its entirety.
The term of this Agreement is from the date first written above to June 30, 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.
3. This Agreement is amended to delete and replace in its entirety:
Exhibit B “Compensation” with Exhibit B-1 “Compensation” attached hereto and incorporated herein.
4. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect
11 City of Goleta
Amendment No. 2 to Agreement No. 2021-026
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
____________________________ ______________________________ Michelle Greene, City Manager Robert A. Schmidt, P.E., Principal
A T T E S T :
_____________________________ ______________________________ Deborah Lopez, City Clerk Alan H. Chierici, Vice President
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
12 City of Goleta
Amendment No. 2 to Agreement No. 2021-026
Exhibit B-1
Compensation
ENGINEERING SERVICES HOURLY RATE
Principal Engineer ....................................................................... $216.00 Associate Engineer ...................................................................... $199.00 Senior Engineer II........................................................................ $189.00 Senior Engineer 1 ........................................................................ $176.00 Drainage Engineer ....................................................................... $176.00 Qualified SWPPP Practitioner. .................................................... $176.00 Design Engineer II ....................................................................... $166.00 Water Resources Specialist ........................................................ $166.00 Project Manager .......................................................................... $166.00 Design Engineer I ........................................................................$154.00 CAD Designer ..............................................................................$140.00 CAD Technician ........................................................................... $125.00 Administrative Support ................................................................$107.00
PLANNING SERVICES
Principal Planner ......................................................................... $189.00 Associate Planner ........................................................................ $168.00 Senior Planner .............................................................................$158.00 Public Agency Coordinator ..........................................................$142.00
CONSTRUCTION PHASE SERVICES
Principal Construction Engineer .................................................. $216.00 Associate Construction Engineer ................................................ $199.00 Senior Construction Engineer ..................................................... $187.00 Resident Engineer ....................................................................... $176.00 Prevailing Wage Construction Monitor ....................................... $160.00 Prevailing Wage Construction Monitor Overtime ....................... $190.00 Prevailing Wage Construction Monitor Weekend ...................... $190.00 Construction Monitor. .................................................................. $138.00
EXPERT TESTIMONY
Expert Testimony, Deposition, Court Appearance, and research related thereto will be charged at 3.0 times the applicable hourly rate.
REIMBURSABLE EXPENSE
Plots and other expenses connected with the work will be charged at cost.
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15 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
Project Name: On-Call Traffic Control Monitoring Services
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF GOLETA
AND
FLOWERS & ASSOCIATES, INC.
This AGREEMENT FOR PROFESSIONAL SERVICES (herein referred to as “AGREEMENT”) is made and entered into this ___ day of April, 2021, by and between the CITY OF GOLETA, a municipal corporation (herein referred to as "CITY"), and Flowers & Associates, a civil engineering, planning, and construction engineering corporation (herein referred to as "CONSULTANT").
WHEREAS, the CITY has a need for professional on-call traffic control monitoring services for encroachment permit traffic control.; and WHEREAS, the CITY does not have the personnel able and/or available to perform the services required under this AGREEMENT, and therefo re, the CITY desires to contract for professi
onal services to accomplish this work; and
WHEREAS, the CITY procured these services in compliance with Goleta Municipal Code Section 3.05.260 by means of a formal request fo
r proposal/qualifications process; and
WH
EREAS, the City Manager approved this AGREEMENT pursuant to Goleta Municipal Code section 3.05.070.
CITY and CONSULTANT agree as follows:
1. RETENTION AS CONSULTANT
CITY hereby retains CONSULTANT, and CONSULTANT hereby accepts s uch 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 Services on-call in spection services in conjunctio ns with City issued encroachment permits for private construction within the public right-of-way. Services are for work scheduled outside normal C ity business hours. Services shall generally include on-call overs ight and inspection of encroachment permits adherence to local and state laws, and conformance to City standard details for construction, as m ore DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 20 2021-026
16 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
particularly set forth in the Scope of Work, attached as Exhibit “A,” and incorporated herein. CONSULTANT shall deliver to CITY the deli verables 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 $45,000. (herein "not to exceed amount"), and shall be earned a s the work progresses on the following basis:
Hourly at the hourly rates and wi th reimbursement to CONSULTANT for those expenses set forth in CONSULTANT's Schedule of Fees marked Exhibit "B," attached and incorporated herein. The rates and e xpenses set forth in that exhibit shall be binding upon CONSULTANT unti l June 30, 2021 after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in S ection 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 CONSULTA NT 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 perfo rmed (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 authorized extra servi ces, not reasonably included within the serv ices described in Section 2, as mutually agreed to writing in advance of the incurrence of extra services by CONSU LTANT. 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 ser vices or expenses shall exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in the compensation exhibit. Any compensation for extra servic es shall be part of the total compensation and shall not increase the not to exceed amount identified in Section
3. 5. CITY PROJECT MANAGE R 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 present ly is Melissa Angeles, Project Manager shall have the aut hority to act on behalf of th e CITY in administering DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 17 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
this AGREEMENT but shall not be authorized to extend the term o f 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 June 30, 2021 unless term of this AGREEMENT is extended, or the AGREEMEN T is terminated as provided for herein.
CONSULTANT shall not commence work on the services to be perfor med 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 by June 30, 2021 and i ncorporated here in as "on-call inspection services."
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than CONSULTANT's drafts, notes and internal memorandum), inclu ding duplication of same prepared by CONSULTANT in the performance of these service s , a r e t h e property of CITY. CITY shall be entitled to immediate possessi on 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 fro m 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 w ritten authorization of CONSULTANT is first obtained.
8. PERSONAL SERVICES/NO A SSIGNMENT/SUBCONTRACTOR
T h i s A G R E E M E N T i s f o r p r o f e s s i o n a l s e r v i c e s w h i c h a r e p e r s o n a l to CITY.
Alan Chierici, Flowers & Associates is deemed to be specially e xperienced and is a key member of CONSULTANT's firm, and shall be directly involved in the performance of this work. This key person s hall communicate with, and periodically report to, CITY on the progress of the work. Should any such individual be remove d from assisting in this contracted work for any reason, CITY may terminate this AGREEME NT. This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
9. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless for CONSULTANT's Damages. CONSULTANT holds CITY, its elected officials, officers, agents, and employees, h armless from all of CONSULTANT's claims, demands, la wsuits, judgments, damages, los ses, injuries or liability to CONSULTANT, to CONSU LTANT's employees, to CONSULTA NT’s contractors or subcontractors, or to the owners of CONSULTANT's f i r m , w h i c h damages, losses, injuries or liability occur during the work re quired under this AGREEMENT, or occur while CONSULTANT is on CITY property, or wh ich are DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 18 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
connected, directly or indirectl y, with CONSULTANT's performanc e of any activity or work required under this AGREEMENT.
(b) Defense and Indemnity of Third Party Claims/Liability. CONSULTANT shall investigate, defend, and in demnify CITY, its elected offi cials, officers, agents, and employees, from any claims, law suits, demands, judgments, and a ll liability including, but not limited to, monetary or p roperty damage, lost profit, p ersonal injury, wrongful death, general liability, automobile, infringement of copyright /patent/trademark, or professional errors and omissions arising out of, directly or i ndirectly, an error, negligence, or omission of CONSULTANT or any of CONSULTANT’s of ficers, agents, employees, representatives, subconsultants, or subcontractors, or the willful misconduct of CONSULTANT or any of CONSUL TANT’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, att orney fees, expert witness costs, investigation cost s, 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 secti on 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, provid e insurance as described herein. All insurance is to be placed w ith insurers authorized to do business in the State of Calif ornia with an A.M. Best and Co mpany rating of A- or better, Class VII or better, or as otherwise approved by CITY.
Insurance shall include the following (or broader) coverage:
a) Insurance Services Office Commercial Liability coverage “o ccurrence” 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 gene ral 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 Pro vider owns no vehicles, this requirement may b e satisfied by a non-owned and hired auto endorsement to Service Provider’s commercial general liability policy.
DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 19 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
c) Workers’ Compensation insuranc e 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 CONSULT ANT hereunder shall contain or be endorsed to contain the following provisions:
a) CITY, its employees, offi cials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any an d 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 ope rations shall be provided either in the additiona l insured form or through anoth er 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 insur ance policies inception date, continuity date, or retroactive date must be before the effective date of this agre ement.
CONSULTANT agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
d) Liability coverage shall be primary and non-contributing w ith 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 da ys’ prior written notice has been given to CITY. Such provision shall no t include any limitation of liability of the insurer for failure to provide such notice.
f) No liability insurance cove rage provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CON SULTANT’s employees, or agents , from waiving the right of recovery prior to a loss. CONSULTANT waives its right of recovery against CITY.
DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 20 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
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 pre miums or other amounts with respect to the insurance required to be provided b y CONSULTANT hereunder. Any failu re, actual or alleged, on the p art 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 addition al 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 righ t 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 wit hhold amounts sufficient to pay premium from CONSULTANT payments.
i) CONSULTANT agrees to provi de immediate notice to CITY of a ny claim or loss against CONSULTANT arising out of the work performed under t h i s AGREEMENT. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) t o monitor the handling of any such claim or claims if they are likely to involve CITY.
11. RELATIONSHIP OF C ONSULTANT TO CITY
The relationship of the CONSULTA NT to CITY shall be that of an independent contractor and that in no event s hall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely respon sible 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 indemnifi cation obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed du ring 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 CI TY, and the cost thereof shall be charged to CONSULTANT or withheld from any fun ds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
CITY, by notifying CONSULTANT i n writing, may upon 10 calendar days notice, terminate without cause any portion or all of the services agre ed 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 oblig ation to immediately assemble work in progress for the purpose of closing out the jo b. All compensation for DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 21 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
actual work performed and charges outstanding at the time of te rmination shall be payable by CITY to CONSULTANT within 30 days following submissi on of a final statement by CONSULTANT unless termination is for cause. In su ch event, CONSULTANT shall be compensated only to the extent required by law.
14. ACCEPTANCE OF FINAL PAYME NT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under th is AGREEMENT shall operate as and be a release of CITY from all cl aims 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 compensatio n 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 CONSULTAN T s f o r t h e accuracy and competency of the i nformation provided and/or work performed; nor shall such approval or payment be deem ed to be an assumption of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT, its employees, subcontractors, agents and consultants.
15. AUDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with respect to all matters cove red by this AGREEMENT and will permit CITY to audit, examine and/or reproduce such re cords. CONSULTANT will retain such financial reco rds, time sheets, work progress reports, invoices, bills and project records for at least two years after termination or fin al 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 o f 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 p arty of a default or breach of the other party shall be effective or binding upon su ch 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, an d invocation of any such right or remedy shall not constitute a waiver or election of re medies with respect to any other permitted or available right of remedy.
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Department of Public Works and Flowers & Associates, Inc.
17. CONFLICT OF INTEREST
CONSULTANT is unaware of any CITY employee or official that has a financial interest in CONSULTANT'S busine ss. During the term of this AGR EEMENT and/or as a result of being awarded this A GREEMENT, CONSULTANT shall not offer, encourage or accept any financial interest i n CONSULTANT'S business by an y CITY employee or official.
18. CONSTRUCTION OF L ANGUAGE 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 r equired by the context, the singular shall include the pl ural and vice versa, and the m asculine 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 sh all 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 Sta te of California. Should litigation occur, venue shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
CONSULTANT shall not discriminat e 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 Taxpa yer 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 av ailable, unexhausted and unencum bered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEM ENT shall cover only those costs incurred up to the conclusion of the current fiscal year.
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Department of Public Works and Flowers & Associates, Inc.
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 C ITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AG REEMENT 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 duri ng the term of this AGREEMENT, all appropriate permits, licenses, and certific ates that 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 des cribe the scope or intent of a ny provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authoriz ed the execution of this AGREE MENT on its behalf and bind said party and its respective administrators, o fficers, directors, shareholders, divisions, subsidiaries, agents, employees, succe ssors, assigns, principals, partners, joint vent urers, insurance carriers and a ny others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT'S proposals and submitted representations f o r obtaining this AGREEMENT, this AGREEMENT supersedes any other a greements, either oral or in writing, bet ween the parties hereto with resp ect to the rendering of services, and contains all of t he covenants and agreements betw een the parties with respect to said services.
30. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of compet ent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
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Department of Public Works and Flowers & Associates, Inc.
31. NOTICES
Any notice required to be given hereunder shall be deemed to ha ve been given by depositing said notice in the United States mail, postage pr epaid, and addressed as follows:
TO CITY: Attention: Michelle Greene, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Alan Chierici, Vice President
Flowers & Associat es, Inc.
201 North Calle Cesar Chavez, Suite 100
Santa Barbara, CA 93103
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.
CITY OF GOLETA CONSULTANT
_____________________________ _____________________________ Michelle Greene, City Manager Robert A. Schmidt, P.E. Principal
A T T E S T
_____________________________ _____________________________ Deborah Lopez, City Clerk Alan H. Chierici, Vice President
APPROVED AS TO FORM:
MICHAEL JENKINS, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 25 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
Exhibit A:
Scope of Services
CONSULTANT SHALL PROVIDE THE FOLLOWING ON-CALL INSPECTION SERVICES:
1. Provide construction inspection that includes observation, i nspection and notice of correction required for construction activities to verify that the activities comply with the encroachment permit, plans, specifications, City standards and public safety.
2. Provide pre-work condition doc umentation (photo and/or video graphic).
3. Notify City staff of any identified areas of special importance for further normal business hours of inspection.
4. Coordinate and disseminate information to City staff, nearby affected properties and utility providers of possible construction activity impacts.
DELIVERABLES:
5. Create and maintain daily inspection reports and photo- documentation of construction activities for permits under inspection.
6. Provide sign off at completion of the work associated with any encroachment permit under inspector's pervue.
DocuSign Envelope ID: D179EA9C-F15E-4B94-949E-46832234B953 26 City of Goleta
Department of Public Works and Flowers & Associates, Inc.
Exhibit B
Fee Schedule
E N G I N E E R I N G S E R V I C E S HOURLY RATE Principal Engineer .. ................................................................ $206.00 Associate Engineer ............................................................... $189.00 Senior Engineer II .................................................................. $178.00 Senior Engineer I ................................. .................................. $168.00 Drainage Engineer ....................... .......................................... $168.00 Qualified SWPPP Practitioner ................................................. $168.00 Design Engineer !!................. ................................................. $158.00 Water Resources Specialist .................................................. $158.00 Project Manager .................................................................... $158.00 Design Engineer 1. ............................................................... $147.00 CAD Designer .................................... .................................... $133.00 CAD Technician ................. .................................................... $119.00 Administrative upport... ............................................................. $102.00
PLANNING
SERVICES
Principal Planner .................................................................... $179. . .00 Associate Planner ........................................................... ......... $158.00 Senior Planner ........................................................................ $148.00 Public Agency Coordinator ..................................................... $135.00
C O N S T R U C T I O N PHASE SERVICES
Principal Construction Engineer ........... ................................... $206.00 Associate Construction Engineer ...................... ...................... $189. 00 Senior Construction Engineer ............................................... .. $178.00 Resident Engineer.................... ............................................... $168.00 Prevailing Wage Construction Monitor ........... . .......................... $152.00 Construction Monitor ............................................................... $131.00
REIMBURSABLE EXPENSE
Plots and other expenses connected with the work will be charged at cost.
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