Agenda Item A.4
CONSENT CALENDAR
Meeting Date: February 6, 2024
TO: Mayor and Councilmembers
SUBMITTED BY: Charles W. Ebeling, Public Works Director PREPARED BY: Melissa Angeles, Assistant Engineer
SUBJECT: Amendment No. 2 to Agreement 2023-033 with UNICO Engineering, Inc. for Professional Construction Management Services for Project Connect
RECOMMENDATION:
Authorize the City Manager to execute Amendment No. 2 to Agree ment No. 2023 -033 with UNICO Engineering, Inc. for Professional Construction Management Services for Project Connect, increasing the contract amount by $373,932.92, for a new total not -to- exceed amount of $6,173,246.36 and with a termination date of December 31, 2027.
BACKGROUND:
The Public Works Capital Improvement Program (CIP) Division is responsible for constructing and repairing City infrastructure such as roads, bridges, drainage facilities, and traffic signals. For these projects to be successful, cost-efficient, and safe, they must be managed by a team of engineers and inspectors.
On October 27, 2022, a Request for Proposals was advertised and issued on PlanetBids for Construction Management for Resident Engineer, Inspection, Public Outreach, and Material Testing (CMT) Services for the combined Ekwill Street and Fowler Road Extensions Project and Hollister Avenue Bridge Project . Proposals were due on November 23, 2022, and the City received three proposals from the following firms:
1. Unico Engineering, Inc.
2. MNS Engineers, Inc.
3. Filippin Engineering
A five-member evaluation team that included three City staff members from Public Works, one member from Caltrans , and one member from the City of Santa Barbara evaluated the proposals and interviewed the three firms. Unico Engineering was the top-ranked firm based on the proposal submitted and the interview.
1 Meeting Date: February 6, 2024
City staff worked with Unico Engineering to negotiate the staffing and cost CMT services to ensure the project meets all federal guidelines and bid document requirements. Federal requirements outlined in the Caltrans Local Assistance Procedures Manual Chapter 16 “Administer Construction Contracts” in section 16.1 introductions states that the City is required to adequately staff and equi p the project team to properly administer the contract; therefore, the CMT will be full-time for the project duration.
On February 21, 2023, the City Council authorized the City Manager to execute a Professional Services Agreement with UNICO Engineering, Inc. (UNICO) for Construction Management and Materials Testing Services for Project Connect.
Amendment No. 1 to Agreement No. 2023-033 was approved on June 28, 2023, to update the rate schedules for UNICO’s subconsultants to comply with indirect rates approved by Caltrans’ Independent Office of Audits and Investigations.
DISCUSSION:
The California Environmental Quality Act (CEQA) documents and associated mitigation measures and project commitments for Project Connect require the protection of Tribal Cultural Resources that may be affected by ground disturbing activities as specified by the project plans. Public Works staff is recommending that Amendment No. 2 to Agreement 2023-033 be approved to amend UNICO’s scope of work to include Tribal Cultural Resources Monitoring services and a Treatment Plan in coordination with the City and the Coastal Band of the Chumash Nation to support compliance with the project requirements.
Table 1 below provides a summary of the history of the original agreement and subsequent contract amendment with UNICO.
2 Meeting Date: February 6, 2024
Table 1: UNICO Contract History
Contract Date
Approved
Termination
Date
Contract
Authority
Total
Contract
Amount
Original February 21,
2023
December 31,
2027
$5,799,313.44 $5,799,313.44
Amendment 1 June 28, 2023 December 31,
2027
$5,799,313.44 $5,799,313.44
Amendment 2 N/A December 31,
2027
$6,173,246.36 $6,173,246.36
Public Works staff is recommending that the City Council authorize the City Manager to execute Amendment No. 2 to Agreement No. 2023-033, updating UNICO’s scope of work to add Tribal Cultural Resource M onitoring services and development of a Treatment Plan, increasing the contract authority by $373,932.92 for a new not -to-exceed amount of $6,173,246.36, and amending the rate schedule shown in Exhibit B-2 Compensation (Attachment 1). The agreement termination date is December 31, 2027.
FISCAL IMPACTS:
Table 2 below summarizes the project budget amounts, including carryovers, and funding sources. There are sufficient funds in the adopted FY 23/24 budget to cover the cost of the professional services associated with this amendment.
Table 2: Project Funding
Professional Services
Account Fund FY 23/24
Current Budget
YTD Activity/
Encumbrances
Total Available
Budget
220-90-9002-
57071
Transportation
DIF
$6,406,077.54 $6,204,153.76 $201,923.78
220-90-9033-
57071
Transportation
DIF
$466,095.02 $448,938.98 $17,156.04
230-90-9002-
57071
LRDP $5,182,397.31 $5,159,961.33 $22,435.98
401-90-9033-
57071
HBP $16,392,614.92 $16,260,197.79 $132,417.13
Total $28,447,184.79 $28,073,251.87 $373,932.92
Tables 3 and 4 show a breakdown of the Project Connect costs.
3 Meeting Date: February 6, 2024
Table 3: Estimated Project Costs – Ekwill-Fowler
Project
Components Estimated Costs Funding Source Funding Amounts
Conceptual Design $1,133,279.00 General Fund (101) $10,842,992.95 Environmental $1,133,279.00 General Fund (102) $250,000.00 Final Design $6,895,611.00 Measure A (205) $1,325,292.18 Land Acquisition $5,763,000.00 DIF Transportation
(220) $16,564,956.11
Construction $51,694,372.91 Gas (201) $694,000.00
LRDP (230) $5,986,710.00
STIP (308) (grant) $15,820,780.95
CDBG (402) (grant) $97,000.00
ARPA (423) $4,933,990.00
STIP (404) $670,186.58
RDA (601) $654,318.14
Measure A (205) TBD
– Awaiting SBCAG
Board Approval $8,414,000.00
Measure A Grant
(206) $365,315.00
Total: $66,619,541.91 Total: $66,619,541.91
Table 4: Estimated Project Costs – Hollister Avenue Bridge Project
Project
Components Estimated Costs Funding Source Funding Amounts Conceptual
Design
$300,000.00 Measure A (205) $1,002,534.00
Environmental $400,000.00 HBP (401) $29,000,000.00 Final Design $3,244,993.00 General Fund (101) $2,605,391.45 Land Acquisition $4,220,000.00 General Fund (102) $343.60 Construction $26,642,691.97 DIF Transportation
(220)
$3,888,870.61
DIF Storm Drain (234) $100,000.00
RDA $9,501.76
Total: $36,606,641.42
Total: $36,606,641.42
4 Meeting Date: February 6, 2024
ALTERNATIVES:
The City Council may elect not to approve the amendment to the Construction Management agreement, however, doi ng so would prevent Project Connect from complying with CEQA requirements and associated mitigation measures and project commitments.
LEGAL REVIEW BY: Megan Garibaldi, City Attorney
APPROVED BY: Robert Nisbet, City Manager
ATTACHMENTS:
1. Amendment No. 2 to Agreement No. 2023-033 with UNICO Engineering, Inc.
2. Amendment No. 1 and Agreement No. 2023-033 with UNICO Engineering, Inc.
5 ATTACHMENT 1
Amendment No. 2 to Professional Services Agreement 2023-033 with UNICO Engineering, Inc.
6 City of Goleta
Amendment No. 2 to Agreement No. 2023-033
AMENDMENT NO. 2
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
UNICO ENGINEERING, INC.
This Amendment No. 2 to the Professional Services Agreement by and between the City of Goleta , a municipal corporation (“City”) and UNICO Engineering, Inc. (“Consultant”) dated February 21, 2023 (“Agreement,” Agreement No. 2023-033) is made on this _____ day of __________, 2024.
SECTION A. RECITALS
1. This Agreement is for the professi onal construction management services in conjunction with Ekwill Street and Fowler Road Extensions and Hollister Avenue Bridge Projects (CIP Project Nos. 9002 and 9033); and
2. This Agreement has been amended to identify new hourly rates (Amendment No. 1); and
3. The Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed $5,799,313.44; and
4. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of $373,932.92 for additional tasks; and
5. The Agreement currently provides in Exhibit A entitled “Scope of Work” the complete and particular description of services; and
6. 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
7. The Agreement currently provides in Exhibit B-1 entitled “Schedule of Fees” the hourly rates; and
8. The parties desire to amend Exhibit B-1 of the Agreement to identify the new hourly rates, attached as “Exhibit B-2”; and
9. The City Council approved this Am endment No. 2, on this _____ day of ______, 2024.
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Amendment No. 2 to Agreement No. 2023-033
SECTION B. AMENDED TERMS
Now therefore City and Consultant agree as follo ws 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 $373,932.92 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 $6,173,246.36 (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 s hall be binding upon CONSULTANT until December 31, 2027, 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 delete and replace in its entirety:
Exhibit B-1 “Schedule of Fees ” 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.
In concurrence and witness whereof, this Amendment No. 2 has been executed by the parties effective on the date and year first above written.
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Amendment No. 2 to Agreement No. 2023-033
CITY OF GOLETA CONSULTANT
____________________________ ______________________________ Robert Nisbet, City Manager Cesar Montes de Oca, PE, President
A T T E S T :
_____________________________ ______________________________ Deborah Lopez, City Clerk Cesa r Montes de Oca, PE, Secretary
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
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EXHIBIT A-1
SCOPE OF WORK
Consultant shall provide the following:
Task 1: Services Prior to Construction
Constructability and Biddability Review: Conduct a constructability and biddability review. Prepare a verification matrix of items identified in the documents, plans, specifications, and permits.
Meetings: Prepare agendas, minutes, and action items, and facilitate meetings. Review meetings are anticipated with the utility providers, design team, Caltrans, Santa Barbara MTD, Santa Barbara Airbus, and impacted businesses.
Bid Support: Review and analyze the bid for compliance with the contract requirements, including local, state, and federal regulations.
Task 2: Construction Management
Project Schedule: Review the Contractor’s schedule for compliance. Evaluate and compare the 3-week look-ahead schedule to identify any major delays.
Stakeholder Coordination: Provide coordination between the Contractor, design team, City staff, City Council, Caltrans, County, utility agencies, residents, businesses, and the public regarding construction activities and project progress.
Project Controls: Measure, document, and prepare quantity sheets (based on Caltrans sheets) to approve progress pay estimates. Use quantity forecasting tool to recognize potential quantity overruns early and manage the budget. Track and review certified payroll and request notices of non-performance.
Traffic Handling: Review traffic handling submittal and coordinate review and approval by other agencies. Drive the sites daily to review the traffic control and detours, report issues, and make recommendations for improvements.
SWPPP: Monitor Contractor compliance with the SWPPP. Review the BMPs established at each site.
Monthly Report: Prepare a Monthly Report to include with invoice and pay request, including tracking logs, summary of items accomplished, upcoming completion items, schedule status, and items outstanding.
Task 2.1: Contract Administration
Meetings: Prepare agendas, minutes, and action items, and facilitate meetings. Bring the updated logs for submittals, RFIs, and CCOs to provide progress updates and
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identify safety concerns. Require Contractor to provide weekly look-ahead schedules.
Document Control: Organize project filing system utilizing CMIS to review, track, coordinate, and log submittals, shop drawings, change orders, pay requests, communications, RFIs, and change directives. Submittals, shop drawings, and the progress schedule will be stamped as necessary.
Certified Payroll/Labor Compliance: Review Contractor’s certified payroll for compliance and conduct labor interviews monthly.
Weekly Statement of Working Days: Prepare, track, and update the Contractor as necessary.
Task 2.2: Public Outreach and Coordination
Community Meetings and Workshops: Plan, coordinate, facilitate, and lead up to twelve (12) community meetings and workshops.
Webpage: Develop content, secure graphic images, and update the existing project webpage.
Information Line: Establish dedicated project email address and phone number.
Business cards will be provided to the team to redirect questions to the information line.
Infographic: Develop an infographic map that highlights key project components.
Update monthly for project webpage and social media channels.
Collateral Materials: Develop collateral materials to inform the community/stakeholders about the project.
Existing City Communication Channels: Provide content to the City for distribution via the Monarch Press, email, and social media channels with project milestones and traffic impact updates.
Community Outreach: Identify parcels/groups impacted by construction activities and, in partnership with the City, facilitate conversations.
Traffic Delays/Commuter Outreach: Develop footprint for a geo-targeted advertising campaign to inform Goleta residents, commuters, and visitors of upcoming traffic delays.
Task 2.3: Change Order Management
Evaluate change orders for merit and coordinate with the Contractor to analyze the supporting costs in comparison with independent cost analysis and Time Impact Analysis.
Approach the project with a “partnering” mentality to resolve issues at the lowest possible level within the dispute escalation ladder. If a claim arises, analyze additional compensation claims that are submitted and prepare responses.
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Task 2.4: Field Inspection
Inspection: Inspect work for compliance with plans, specifications, permits, City QAP, and applicable federal, state, and local codes. Document inspections in Daily Reports (DRs). Attend daily and weekly Contractor safety meetings. Take photographs and record video prior, during, and post construction.
Photographs will be in the DRs and electronically filed via CMIS.
Materials Testing: Provide materials testing and special inspection. Verify that materials used comply with the City’s QAP.
Permitting Compliance and Monitoring: Provide biological monitoring and regulatory permitting support services to verify compliance with permits and mitigation measures, including SWPPP.
Survey Layout and Staking Verification: Provide survey staking verification.
Task 3: Construction Closeout
Task 3.1: Substantial and Final Completion
Prepare a punch list to track items that are incomplete, require corrective action, or are subject to testing. Review and comment on final Record Drawings provided in comparison to the field sets. Balance quantities, process final change orders, and recommend final payment and release of retention. Provide documentation for compliance with the MMRP and 90-day plant establishment period.
Task 3.2: Records Compilation and Submittal
The final project records will be organized in accordance with the Caltrans LAPM and delivered to the City electronically via CMIS.
Task 3.3: Warranty and Lien Information
Collect warranty and lien information, including software licenses for traffic devices, training, and manuals prior to final acceptance.
Task 3.4: Final Electronic Submittal
Deliver audit-ready project records in accordance with the Caltrans LAPM to the City electronically.
Task 4: Quality Control Plan
Prepare and deliver to the City two (2) copies of a project-specific Quality Control Plan in compliance with Caltrans LAPM Chapter 16. Include: supervision and inspection, project records, tracking time, subcontractors, DRs, employment practices, change orders, QAP, environmental stewardship, progress payments, accounting procedures,
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safety, disputes, claims, Caltrans oversight, and other items.
Task 5: Tribal Cultural Resource Monitoring and Treatment Plan
Prepare and deliver a Tribal Cultural Resource Monitoring and Treatment Plan (TCRMTP/Plan) in coordination with the City of Goleta and Coastal Band of the Chumash Nation to support compliance with the Ekwill Street and Fowler Road Extensions Project and Hollister Avenue Bridge Replacement Project (Project) California Environmental Quality Act (CEQA) documents and associated mitigation measures and project commitments. The scope of the TCRMTP is to allow for the identification, evaluation, treatment, and protection of Tribal cultural resources that may be affected by ground disturbing activities as specified by the project plans. The TCRMTP shall outline management procedures, potential impacts, and mitigation measures to be followed to ensure that impacts to Tribal cultural resources during all ground disturbing activities are reduced to less than significant. The Tribal Cultural Resource Monitors from the Coastal Band of the Chumash Nation play an important and key role in the implementation of this Plan.
Deliverables: Daily Tribal Cultural Resources Monitoring Tribal Cultural Resources Report (TCRR)
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EXHIBIT B-2
COMPENSATION
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37 ATTACHMENT 2
Amendment No. 1 and Agreement No. 2023-033 with
UNICO Engineering, Inc.
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AMENDMENT NO. 1
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
UNICO ENGINEERING, INC.
This Amendment No. 1 to the Professional Services Agreement by and between the City of Goleta , a municipal corporation (“City”) and UNICO Engineering, Inc. (“Consultant”) dated February 21, 2023 (“Agreement,” Agreement No. 2023-033) is made on this _____ day of _____ 2023.
SECTION A. RECITALS
1. This Agreement is for professional construction management services in conjunction with Ekwill Street and Fowler Road Extensions and Hollister Avenue Bridge Projects (CIP Project Nos. 9002 and 9033); and
2. The Agreement currently provides in Exhibit B entitled “Schedule of Fees” the hourly rates; and
3. The parties desire to amend Exhibit B of the Agreement to identify the new hourly rates, attached as “Exhibit B-1”; and
4. The City Manager approved this Amendment No. 1, 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. This Agreement is amended to delete and replace in its entirety:
Exhibit B “Schedule of Fees ” with Exhibit B-1 “Schedule of Fees” attached hereto and incorporated herein.
2. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect.
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In concurrence and witness whereof, this Amendment No. 1 has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
____________________________ ______________________________ Robert Nisbet, City Manager Cesar Montes de Oca, PE, President
A T T E S T :
_____________________________ ______________________________ Deborah Lopez, City Clerk Cesar Montes de Oca, PE, Secretary
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
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EXHIBIT B-1
SCHEDULE OF FEES
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64 City of Goleta
Public Works Department and UNICO Engineering, Inc.
Project Name: Ekwill Street & Fowler Road Extensions
and Hollister Avenue Bridge Projects
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF GOLETA
AND
UNICO ENGINEERING, INC.
This AGREEMENT FOR PROFESSIONAL SERVICES (herein referred to as “AGREEMENT”) is made and entered into this 21st day of February 2023, by and between the CITY OF GOLETA , a municipal corporation (herein referred to as "CITY"), and UNICO ENGINEERING, INC. , a California Corporation (herein referred to as "CONSULTANT").
SECTION A. RECITALS
1. The CITY has a need for professional Construction Management services for Ekwill Street and Fowler Road Extensions and Hollister Avenue Bridge Projects; and
2. The CITY does not have the personnel able and/or available to perform the services required under this AGREEMENT, and therefore, the CITY desires to contract for professional services to accomplish this work; and
3. The CITY procured these services in compliance with Goleta Municipal Code Section 3.05.260.
4. The City Council, on this 21st day of February 2023, approved this AGREEMENT and authorized the City Manager to execute the AGREEMENT.
SECTION B. TERMS
1. RETENTION AS CONSULTANT
CITY hereby retains CONSULTANT, and CONSULTANT hereby accepts such engagement, to perform the services described in Section 2. CONSULTANT warrants it has the qualifications, 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:
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Public Works Department and UNICO Engineering, Inc.
Professional Construction Management Services in conjunction with Ekwill Street and Fowler Road Extensions and Hollister Avenue Bridge Projects. Services shall gene rally include Services Prior to Construction to include construc tability and biddability review, meetings, bid support; Construction Management Services including project schedule review, stakeholder coordination, project controls, traffic handling, SWPPP compliance, monthly reporting, contract administration, public outreach and coordination, change order management, field inspection; and Construction Closeout Services and Quality Control Plan as more particularly set forth in the Scope of Work, attached as Exhibit “A,” and incorporated herein.
CONSULTANT shall deliver to CITY the deliverables defined in Exhibit “A.”
3. COMPENSATION AND PAYMENT
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $5,799,313.44 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:
Hourly at the hourly rates and with reimbursement to CONSULTANT for those expenses set forth in CONSULTANT's Schedule of Fees marked Exhibit "B," attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONSULTANT until December 31, 2027, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT for all work described under this AGREEMENT.
(b) Payment. CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification shall be in a form satisfactory to CITY's Project Manager, as described in Section 5.
Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including a list of hours worked by personnel classification).
All payments shall be made within 30 days after CITY’s approval of the invoice.
4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY authorized extra services, not reasonably included within the services described in Section 2, as mutually agreed to writing in advance of the incurrence of extra services by CONSULTANT.
Unless CITY and CONSULTANT have agreed in writing before the performance of extra services, no liability and no right to claim compensation for such extra
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Public Works Department and UNICO Engineering, Inc.
services or expenses shall exist. The a pplicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit B, if one is included as part of this agreement. Any compensation for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section
3. 5. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be accomplished under the general direction of, and coordinate with, CITY's "Project Manager", as that staff person is designated by CITY from time to time, and who presently is Nina Buelna, Assistant Public Works Director. Project Manager shall have the authority to act on behalf of the CITY in administering this AGREEMENT but shall not be authorized to extend the term of the AGREEMENT or increase the not to exceed amount.
6. TERM, PROGRESS AND COMPLETION
The term of this AGREEMENT is from the date first written above to December 31, 2027, 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 insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY's Project Manager.
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than CONSULTANT's drafts, notes and internal memorandum), including duplication of same prepared by CONSULTANT in the performance of these services, are the property of CITY. CITY shall be entitled to immediate possession of the same upon completion of the work under this AGREEMENT, or at any earlier or later time when requested by CITY. CITY agrees to hold CONSULTANT harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans and specifications for purposes other than those described in this AGREEMENT, unless written authorization of CONSULTANT is first obtained.
8. PERSONAL SERVI CES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY.
Cesar Montes de Oca, PE, is deemed to be specially experienced and is a key member of CONSULTANT's firm, and shall be directly involved in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the progress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this
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AGREEMENT. This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
x Flowers & Associates, Inc., Alan H. Chierici, 805-966-2224 x Twining, Inc., Linas Vitkus, 562-426-3355
x KMP Strategies, LLC, Sarah Modeste, 916-548-1982
x CPM Partners, Inc., Maribel R. Janecek, 562-365-4989
x Waters Cardenas Land Surveying, LLP, Jose Cardenas, 805-967-4416 x ICF Jones & Stokes, Inc., Christopher C. Elliott, 916-231-9587
9. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless for CONSULTANT's Damages. CONSULTANT holds CITY, its elected officials, officers, agents, and employees, harmless from all of CONSULTANT's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to CONSULTANT, to CONSULTANT's employees, to CONSULTANT’s contractors or subcontractors, or to the owners of CONSULTANT's firm, which damages, losses, injuries or liability occur during the work required under this AGREEMENT, or occur while CONSULTANT is on CITY property, or which are connected, directly or indirectly, with CONSULTANT's performance of any activity or work required under this AGREEMENT. (b) Defense and Indemnity of Third Party Claims/Liability.
CONSULTANT shall investigate, defend, and indemnify CITY, its elected officials, officers, agents, and employees, from any claims, lawsuits, demands, judgments, and all liability including, but not limite d to, monetary or property damage, lost profit, personal injury, wrongful death, general liability, automobile, infringement of copyright/patent/trademark, or professional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, or the willful misconduct of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, in performing the services described in, or normally associated with, this type of contracted work. The duty to defend shall include any suits or actions concerning any activity, product or work required under this AGREEMENT, and also include the payment of all court costs, attorney fees, expert witness costs, investigation costs, claims adjusting costs and any other costs required for and related thereto.
(c) No Waiver. CITY does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by CITY, or the deposit with CITY, of any insurance certificates or policies described in Section 10.
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10. INSURANCE
CONSULTANT shall, at CONSULTANT's sole cost and expense, provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating of A- or better, Class VII or better, or as otherwise approved by CITY.
Insurance shall include the following (or broader) coverage:
a) Insurance Services Office Commercial Liability coverage “occurrence” form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate.
b) Insurance Services Office form number CA 00 01 or equivalent covering Automobile Liability, including hired and non-owned automobile liability with a minimum limit of $1,000,000 per accident. If the Service Provider owns no vehicles, this requirement may be satisfied by a non-owned and hired auto endorsement to Service Provider’s commercial general liability policy.
c) Workers’ Compensation insurance complying with California worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 per accident or disease.
d) Professional liability insurance that covers the services to be performed in connection with this agreement, in the minimum amount of $1,000,000 per claim.
Liability insurance policies required to be provided by CONSULTANT hereunder shall contain or be endorsed to contain the following provisions:
a) Except for professional liability insurance, CITY, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the work performed or related to the contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10, with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37, or its equivalent.
b) General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except
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with respect to the limits of the insu rer’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance po licies inception date, continuity date, or retroactive date must be before the effective date of this agreement.
CONSULTANT agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
d) Except for professional liability insurance, liability coverage shall be primary and non-contributing with any insurance maintained by CITY.
e) Evidence of coverage (including the workers’ compensation and employer’s liability policies) shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days’ prior written notice has been given to CITY. Such provision shall not include any limitation of liability of the insurer for failure to provide such notice.
f) No liability insurance coverage provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT’s
employees, or agents, from waiving the right of recovery prior to a loss.
CONSULTANT waives its right of recovery against CITY.
g) CONSULTANT agrees to deposit with CITY within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) There shall be no recourse against CITY for payment of premiums or other amounts with respect to the insurance required to be provided by CONSULTANT hereunder. Any failure, actual or alleged, on the part of CITY to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of CITY. CITY has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this AGREEMENT does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONSULTANT or CITY will withhold amounts sufficient to pay premium from CONSULTANT payments.
i) CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this AGREEMENT. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY.
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11. RELATIONSHIP OF CONSULTANT TO CITY
The relationship of the CONSULTANT to CITY shall be that of an independent contractor and that in no event shall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely responsible for any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the described work.
12. CORRECTIONS
In addition to the above indemnification obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed during CITY's review of CONSULTANT's report or plans. Should CONSULTANT fail to make such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
CITY, by notifying CONSULTANT in writing, may upon 10 calendar days notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If termination is for cause, no notice period need be given. In the event of termination, CONSULTANT shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following submission of a final statement by CONSULTANT unless termination is for cause. In such event, CONSULTANT shall be compensated only to the extent required by law.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under this AGREEMENT shall operate as and be a release of CITY from all claims and liabilities for compensation to CONSULTANT for anything done, furnished, or relating to CONSULTANT'S work or services. Acceptance of payment shall be any negotiation of CITY's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check. However, approval or payment by CITY shall not constitute, nor be deemed, a release of the responsibility and liability of CONSULTANT, its employees, subcontractors, agents and CONSULTANTs for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by CITY for any defect or error in the
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work prepared by CONSULTANT, its em ployees, subcontractors, agents and consultants.
15. AUDIT OF RECORDS
At any time during normal business hou rs and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with respect to all matters covered by this AGREEMENT and will permit CITY to audi t, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and projec t records for at least two years after termination or final payment under this AGREEMENT.
16. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this AGREEMENT, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedi es with respect to any other permitted or available right of remedy.
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 AGREEM ENT shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
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19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
20. GOVERNING LAW
This AGREEMENT, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venue shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
CONSULTANT shall not discriminate on the basis of race, color, gender, gender identity/expression, pregnancy, sexual orientation, disability, marital status, or any other characteristic protected under applicable federal or state law.
22. TAXPAYER IDENTIFICATION NUMBER
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, Form W-9 (Rev. October 2018), as issued by the Internal Revenue Service.
23. NON-APPROPRIATION OF FUNDS
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shall cover only those costs incurred up to the conclusion of the current fiscal year.
24. MODIFICATION OF AGREEMENT
The tasks described in this AGREEMENT and all other terms of this AGREEMENT may be modified only upon mutual written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licenses, and certificates that
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may be required in connection with the performance of services under this AGREEMENT.
27. CAPTIONS
The captions or headings in this AGREEMENT are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authorized the execution of this AGREEMENT on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT'S proposals and submitted representations for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services.
30. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenfo rceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the Un ited States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Robert Nisbet, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attn: Cesar Montes de Oca, PE, President UNICO Engineering, Inc.
110 Blue Ravine Road, Suite 101
Folsom, CA 95630
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32. COUNTERPARTS AND ELECTRONIC/FACSIMILE SIGNATURES
This Agreement may be executed in several counterparts, which may be facsimile or electronic copies. Each counterpart is fully effective as an original, and together constitutes one and the same instrument.
33. FEDERAL REQUIREMENTS
FEMA financial assistance will be used to fund all or a portion of this contract.
The Consultant shall comply with all federal requirements including, but not limited to, the following:
1. 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference.
2. Federal Contract Provisions attached hereto as Exhibit “C” and incorporated
herein by reference.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the contract, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions.
With respect to any conflict between such federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
In concurrence and witness whereof , this AGREEMENT has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
_____________________________ _____________________________ Robert Nisbet, City Manager Cesar Montes de Oca, PE, President
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ATTEST CONSULTANT
_____________________________ _____________________________ Deborah Lopez, City Clerk Cesar Montes de Oca, PE, Secretary
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
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EXHIBIT A
SCOPE OF WORK
Consultant shall provide the following:
Task 1: Services Prior to Construction
Constructability and Biddability Review: Conduct a constructability and biddability review. Prepare a verification matrix of items identified in the documents, plans, specifications, and permits.
Meetings: Prepare agendas, minutes, and action items, and facilitate meetings.
Review meetings are anticipated with the utility providers, design team, Caltrans, Santa Barbara MTD, Santa Barbara Airbus, and impacted businesses.
Bid Support: Review and analyze the bid for compliance with the contract requirements, including local, state, and federal regulations.
Task 2: Construction Management
Project Schedule: Review the Contractor’s schedule for compliance. Evaluate and compare the 3-week look-ahead schedule to identify any major delays.
Stakeholder Coordination: Provide coordination between the Contractor, design team, City staff, City Council, Caltrans, County, utility agencies, residents, businesses, and the public regarding construction activities and project progress.
Project Controls: Measure, document, and prepare quantity sheets (based on Caltrans sheets) to approve progress pay estimates. Use quantity forecasting tool to recognize potential quantity overruns early and manage the budget. Track and review certified payroll and request notices of non-performance.
Traffic Handling: Review traffic handling submittal and coordinate review and approval by other agencies. Drive the sites daily to review the traffic control and detours, report issues, and make recommendations for improvements.
SWPPP: Monitor Contractor compliance with the SWPPP. Review the BMPs established at each site.
Monthly Report: Prepare a Monthly Report to include with invoice and pay request, including tracking logs, summary of items accomplished, upcoming completion items, schedule status, and items outstanding.
Task 2.1: Contract Administration
Meetings: Prepare agendas, minutes, and action items, and facilitate meetings.
Bring the updated logs for submittals, RFIs, and CCOs to provide progress updates and identify safety concerns. Require Contractor to provide weekly look- ahead schedules.
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Document Control: Organize project filing system utilizing CMIS to review, track, coordinate, and log submittals, shop drawings, change orders, pay requests, communications, RFIs, and change directives. Submittals, shop drawings, and the progress schedule will be stamped as necessary.
Certified Payroll/Labor Compliance: Review Contractor’s certified payroll for compliance and conduct labor interviews monthly.
Weekly Statement of Working Days: Prepare, track, and update the Contractor as necessary.
Task 2.2: Public Outreach and Coordination
Community Meetings and Workshops: Plan, coordinate, facilitate, and lead up to twelve (12) community meetings and workshops.
Webpage: Develop content, secure graphic images, and update the existing project webpage.
Information Line: Establish dedicated project email address and phone number.
Business cards will be provided to the team to redirect questions to the information line.
Infographic: Develop an infographic map that highlights key project components.
Update monthly for project webpage and social media channels.
Collateral Materials: Develop collateral materials to inform the community/stakeholders about the project.
Existing City Communication Channels: Provide content to the City for distribution via the Monarch Press, email, and social media channels with project milestones and traffic impact updates.
Community Outreach: Identify parcels/groups impacted by construction activities and, in partnership with the City, facilitate conversations.
Traffic Delays/Commuter Outreach: Develop footprint for a geo-targeted advertising campaign to inform Goleta residents, commuters, and visitors of upcoming traffic delays.
Task 2.3: Change Order Management
Evaluate change orders for merit and coordinate with the Contractor to analyze the supporting costs in comparison with independent cost analysis and Time Impact Analysis.
Approach the project with a “partnering” mentality to resolve issues at the lowest possible level within the dispute escalation ladder. If a claim arises, analyze additional compensation claims that are submitted and prepare responses.
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Task 2.4: Field Inspection
Inspection: Inspect work for compliance with plans, specifications, permits, City QAP, and applicable federal, state, and local codes. Document inspections in Daily Reports (DRs). Attend daily and weekly Contractor safety meetings. Take photographs and record video prior, during, and post construction.
Photographs will be in the DRs and electronically filed via CMIS.
Materials Testing: Provide materials testing and special inspection. Verify that materials used comply with the City’s QAP.
Permitting Compliance and Monitoring: Provide biological monitoring and regulatory permitting support services to verify compliance with permits and mitigation measures, including SWPPP.
Survey Layout and Staking Verification: Provide survey staking verification.
Task 3: Construction Closeout
Task 3.1: Substantial and Final Completion
Prepare a punch list to track items that are incomplete, require corrective action, or are subject to testing. Review and comment on final Record Drawings provided in comparison to the field sets. Balance quantities, process final change orders, and recommend final payment and release of retention. Provide documentation for compliance with the MMRP and 90-day plant establishment period.
Task 3.2: Records Compilation and Submittal
The final project records will be organized in accordance with the Caltrans LAPM and delivered to the City electronically via CMIS.
Task 3.3: Warranty and Lien Information
Collect warranty and lien information, including software licenses for traffic devices, training, and manuals prior to final acceptance.
Task 3.4: Final Electronic Submittal
Deliver audit-ready project records in accordance with the Caltrans LAPM to the City electronically.
Task 4: Quality Control Plan
Prepare and deliver to the City two (2) copies of a project-specific Quality Control Plan in compliance with Caltrans LAPM Chapter 16. Include: supervision and inspection, project records, tracking time, subcontractors, DRs, employment practices, change orders, QAP, environmental stewardship, progress payments,
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accounting procedures, safety, disputes, claims, Caltrans oversight, and other items.
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EXHIBIT B
SCHEDULE OF FEES
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EXHIBIT C
FEDERAL CONTRACT PROVISIONS
During the performance of this contract, UNICO Engineering, Inc. (the “Consultant”) shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit. In this Exhibit, the term “Agency” shall mean the local agency entering into this contract with the Consultant.
1. CONTRACTING WITH SMALL AND MI NORITY FIRMS, WOMEN’S
BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2
C.F.R. § 200.321)
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, wh en economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business
enterprises;
iv. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and
v. Using the services/assistance of the Small Business
Administration (SBA), and the Minority Business
Development Agency (MBDA) of the Department of
Commerce.
Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the Agency.
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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. Part 200, subpart E. 2 C.F.R. § 200.403. Costs that are determined unallowable pursuant to a federal audit are subject to repayment by Consultant.
3. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336)
A. Consultant shall comply with 2 C.F.R. § 200.336 and provide the Federal Agency, Inspectors General, the Comptroller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinent to this contract for the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Consultant personnel for the purpose of interview and discussion related to the books and records.
B. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoev er or to copy excerpts and transcriptions as reasonably needed.
C. The Consultant agrees to provide the Federal Agency or its authorized representatives access to construction or other work sites pertaining to the work being completed under the contract.
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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, then the following termination clauses shall apply. If the contract is for more than the simplified acquisition threshold (see 2 C.F.R. § 200.88) at the time the contract is executed and does not provide for administrative, contractual, or legal remedies in instances where Contra ctor violates or breaches the terms of the contract, then the following termination clauses shall apply and have precedence over the contract. Otherwise, the following termination clauses shall not be applicable to the contract.
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 adequate by the Agency to
show the work actually completed or materials provided by Consultant prior to the effective date of termination. This contract shall terminate on the effective date of the Notice of Termination.
ii. Termination for Cause. If Consultant fails to perform pursuant to the terms of this contract, the Agency shall provide written notice to Consultant specifying the default (“Notice of Default”). If Consultant does not cure such default within ten (10) calendar days of receipt of Notice of Default, the Agency may terminate this contract for cause. If Consultant fails to
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cure a default as set forth above, the Agency may, by written notice to Consultant , terminate this contract for cause, in whole or in part, and specifying the effective date thereof (“Notice of Termination for Cause”). If the termination is for cause, Consultant shall be compensated for that portion of the work or materials provided which has been fully and
adequately completed and accepted by the Agency as of the date the Agency provides the Notice of Termination. In such case, the Agency shall have the right to take whatever steps it deems necessary to complete the project and correct
Consultant’s deficiencies and charge the cost thereof to Consultant, who shall be liable for the full cost of the Agency's corrective action, including reasonable overhead, profit and attorneys' fees.
iii. Reimbursement; Damages. The Agency shall be entitled to reimbursement for any compensation paid in excess of work rendered or materials provided and shall be entitled to withhold compensation for defective work or other damages caused by Consultant performance of the work.
iv. Additional Termination Provisions. Upon receipt of a Notice of Termination, either fo r cause or for convenience,
Consultant shall promptly discontinue the work unless the Notice directs to the contrary. Consultant shall deliver to the Agency and transfer title (if necessary) to all provided materials and completed work, and work in progress including drafts, documents, plans, forms, maps, products, graphics, computer programs and reports. The rights and remedies of the parties provided in this Section are in addition to any other rights and remedies provided by law or under this contract.
Consultant acknowledges the Agency’s right to terminate this contract with or without cause as provided in this Section, and hereby waives any and all claims for damages that might arise from the Agency’s termination of this contract. The Agency shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed work or materials not provided and shall not be entitled to damages or
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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 for consequential damages or lost profits. The rights and remedies of the Agency provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this contract including, but not limited to, the right to specific performance.
B. Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R.
Chapter 60:
i. Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Consultant will take affirmative action to insure that applicants are employed and that employees are treated equally during employment, without regard to race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment upgrading, demotion, transfer, recruitment, or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training including
apprenticeship. Consultant agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the Agency setting forth the provisions of this nondiscrimination clause.
ii. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant , state that all qualified applicants will receive consideration for
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employment without regard to their race, color, religion, sex, or national origin.
iii. Consultant will not discharge or in any other manner discriminate against any employee or applicant for
employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such 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 l abor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of
September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
v. Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
vi. Consultant will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
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vii. In the event of Consultant’s noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No.11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive
Order No.11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Lab or, or as otherwise provided by law.
viii. Consultant will include the provisions of paragraphs (i) through (viii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24,1965, so that such provisions will be binding upon each subcontractor or Consultant. Consultant will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event Consultant becomes involved in, or is threatened with,
litigation with a subcontractor or Consultant as a result of such direction, Consultant may request the United States to enter into such litigation to protect the interests of the United States.
C. Appendix II to Part 200 (D) – Davis-Bacon Act; Copeland Act: Not applicable to this contract.
D. Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
i. If this contract is in excess of $100,000 and involves the employment of mechanics or laborers, Consultant shall
comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a
standard work week of 40 hours. Work in excess of the
standard work week is permissible provided that the worker is
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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 ar e unsanitary, hazardous or
dangerous. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
ii. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
iii. In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor and any
subcontractor responsible ther efor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
iv. The Agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or
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subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other
federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the
clause set forth in paragraph (iii) of this section.
v. The Consultant or subcontractor shall insert in any
subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section.
E. Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:
i. If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the non-Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the non- Federal entity must comply with the requirements of 37 C.F.R.
Part 401 (Rights to Inventions Made by Nonprofit
Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any
implementing regulations issued by the Agency.
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
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work under a funding agreement as defined in the first
sentence of this paragraph.
iii. This requirement does not apply to the Public Assistance, Hazard Mitigation Grant Program, Fire Management
Assistance Grant Program, Crisis Counseling Assistance and Training Grant Program, Disaster Case Management Grant
Program, and Federal Assistance to Individuals and
Households – Other Needs Assistance Grant Program, as
FEMA awards under these programs do not meet the
definition of “funding agreement.”
F. Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this contract is in excess of $150,000, Consultant shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).
i. Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the Agency and understands and agrees that the Agency will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate
Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
ii. Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the Agency and understands and agrees that the Agency will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
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G. Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
i. This contract is a covered trans action for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).
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 programs. Consultant also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from
participation in accordance with the requirements above.
Consultant further agrees to notify the Agency in writing immediately if Consultant or its subcontractors are not in compliance during the term of this contract.
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H. Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this contract is in excess of $100,000, Consultant shall have submitted and filed the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1353). If at any time during the contract term funding exceeds $100,000.00, Consultant shall file with the Agency the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwar ded 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-desi gnated items unless the product cannot be
acquired: Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or At a reasonable price.
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iii. Information about this requirement, along with the list of EPA- designate items, is available at EPA’s Comprehensive
Procurement Guidelines web site,
https://www.epa.gov/smm/comprehensive-procurement-
guideline-cpg-program.
5. MISCELLANEOUS PROVISIONS
A. The Consultant shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.
B. This is an acknowledgement that FEMA financial assistance will be used to fund the contract only. The Consultant will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.
C. Consultant acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.
D. The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the Agency, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.
E. General and Administrative Expenses And Profit For Time And Materials Contracts/Amendments.
i. General and administrative expenses shall be negotiated and must conform to the Cost Principles.
ii. Profit shall be negotiated as a separate element of the cost.
To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the Consultant , the Consultant’s investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
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iii. Any agreement, amendment or change order for work
performed on a time and materials basis shall include a ceiling price that Consultant exceeds at its own risk.
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