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 wor k in progress for the purpose of closing out the job. All compensation for actu al wor k 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 compensati on 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 pr ovided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such respons ibility or liability by CITY for any defect or error in the work prepared by CONSULTANT , its employees, subcontractors, agents and consultants.
15. A UDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with respect to all matters covered by this AGREEMENT and will permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and project records for at least two years after termination or final payment under this AGREEMENT.
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 DocuSign Envelope ID: 912D5EC4-00F8-487B-8724-0FC79C6B0250 DocuSign Envelope ID: 5FE72A8F-E25A-405A-B42B-0E2A7541D832 131
City of Goleta
Public Works Department and Solid Waste Solutions, Inc.
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 effecti ve or binding upon such party unless made in writing by such party, and no such waiver shall be implied f rom 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 t ime, 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 e lection of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT is unawa re of any CITY employee or official that has a financial interest in CONSULTANT 'S business. During the term of this AGREEMENT and/or as a result of being awarded this AGREEMENT , CONSULTANT shall not offer, encourage or accept any financial interest in CONSULTANT'S business by any CITY employee or official.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shal l 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 par ties.
Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT , the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
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, disabi lity, marital status, or any other characteristic protected under applicable federal or state law.
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City of Goleta
Public Works Department and Solid Waste Solutions, Inc.
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 CIT Y 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. U SE OF THE TERM “CITY”
Reference to “ CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licenses, and certificates that may be required in connection with the 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 administrator s, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, j oint venturers, insurance carriers and any others who may claim through it to this AGREEMENT.
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City of Goleta
Public Works Department and Solid Waste Solutions, Inc.
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 A GREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Michelle Greene, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attention: Kimberly Nilsson
Solid Waste Solutions, Inc.
25 W. Rolling Oaks Dr., Suite 201
Thousand Oaks, CA 91361
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.
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City of Goleta
Public Works Department and Solid Waste Solutions, Inc.
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 Kimberly C Nilsson, President
ATTEST
_____________________________ _
____________________________
Deborah Lopez, City Clerk Lars J Nilsson, Vice President
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
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City of Goleta
Public Works Department and Solid Waste Solutions, Inc.
EXHIBIT A
Scope of Work
Consultant shall provide the following services:
1. S olid Waste Administrative Assignments: Consultant shall assist City staff with the administrative duties relative to the Environmental Services Department.
Tasks can include devel opment of proposals, project tracking, contracts, staff report preparation, routing of documents to city staff, coordination of mai lings, preparation of documents related to solid waste and recycling programs, coordination of the preparation of the CalRecycle Annual Report, etc.
2. H ousehold Hazardous Waste Program Coordination: The current collection program is offered by Santa Barbar a County and coordinated/advertised by the city. Consultant shall continue to ensure that this program is implemented, advertised, and tracked efficiently in accordance with current laws by CalRecycle and/or the EPA.
3. S
olid Waste Franchise Agreement Coordination: Consultant shall track all solid waste franchise agreement requirements and ensure obligations are being met by the Franchise Hauler.
4. Prog r
am Development: Consultant shall assist the City in updating existing solid waste programs to further increase the diversio n. These tasks may include but are not limited to:
o Im plementing the City’s adopted policy for diversion of t he Construction and Demolition (C&D) Debris Recycling Program in accordance with the Green Building Code, Commercial recycling and Organics Programs. o Assembly Bill Implementation: With the passage of new California Assembly Bills; AB 341, AB 1826, AB 827, AB 1594, and SB 1383 the City is required to implement many new programs for the multi -family and commercial sectors.
This task includes the education/outreach, implementation, tracking, and monitoring of said programs.
o Assistance with a public outreac h program to all sectors as requested by the City. Creation of public awareness campaigns such as hauler clean up events, recycling, organics mandates, and participation in local and regional stakeholder meetings as requested
5. G rant Coordination: C onsultant shall assist with the coordination of grants, including the tracking of expenditures and assist in expending grant funding as required by each grant.
o CalRecycle- Beverage Container Recycling Grant: Review the CalRecycle Beverage Container Recycling funds received and expenditures. Ensure funds are expended properly.
o Miscellaneous Grants : C onsultant shall review available funding within the solid waste and recycling industry and advise the City regarding grant opportunities.
Cost Estimate:
The cost of work is a time and materials contract for $55,000 per year.
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City of Goleta
Public Works Department and Solid Waste Solutions, Inc.
EXHIBIT B
Schedule of Fees
Professional Staff Hourly Rate
Intern: $28.00/hour
Clerical / Office Assistant $59.00/hour
Recycling Coordinator &
Permit Processor:
$78.00/hour
Project Coordinator: $96.00/hour
Project Management: $121.00/hour
Senior Manager/Computer
Programming / Database
Management:
$158.00/hour
Principal: $181.00/hour
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ATTACHMENT 7
Amendment No. 1 to Professional Services Agreement No. 2023-079 with Flowers and Associates Inc.
138
City of Goleta
Amendment No. 1 to Agreement No. 2023-079
AMENDMENT NO. 1
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
FLOWERS AND ASSOCIATES, INC.
This Amendment No. 1 to the Professional Services Agreement by and between the City of Goleta, a municipal corporation (“City”) and Flowers and Associates, Inc. (“Consultant”) dated July 18, 2023 (“Agreement,” Agreement No. 2023-079) is made on this _____ day of _______, 2024.
SECTION A. RECITALS
1. This Agreement is for the professional encroachment permit support services for encroachment permit processing; and
2. The Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed $238,690 (Two hundred thirty -eight thousand six hundred and ninety dollars); and
3. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of $191,210 for additional tasks; and
4. The Agreement currently provides in Section 6 for the termination of the Agreement on June 30, 2024; and
5. The parties desire to amend the Agreement so as to extend the termination of the Agreement to June 30, 2025; and
6. The Agreement currently provides in Exhibit A entitled “Scope of Work” the complete and particular description of services; and
7. 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
8. The Agreement currently provides in Exhibit B entitled “Schedule of Fees” the hourly rates; and
9. The parties desire to amend Exhibit B of the Agreement to identify the new hourly rates, attached as “Exhibit B-1”; and
10. The City Council approved this Amendment No. 1, on this _____ day of______, 2024.
SECTION B. AMENDED TERMS
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City of Goleta
Amendment No. 1 to Agreement No. 2023-079
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:
1. Subsection (a) of Section 3. COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of $191,210 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 four hundred twenty-nine thousand nine hundred dollars ($429,900.00) (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 -1," attached and
incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONSULTANT 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 am ount is the total compensation due CONSULTANT for all work described under this AGREEMENT.
2. Section 6. TERM, PROGRESS AND COMPLETION of the Agreement i s amended to extend the term for an additional one (1) year to read in its entirety:
The 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 A “Scope of Work ” with Exhibit A-1 “Scope of Work” attached hereto and incorporated herein.
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City of Goleta
Amendment No. 1 to Agreement No. 2023-079
4. 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.
5. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect.
In concurrence and witness whereof, this Amendment No. 1 has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
____________________________ ______________________________ Robert Nisbet, City Manager Alan H. Chierici, Vice President
ATTEST:
_____________________________ ______________________________ Deborah Lopez, City Clerk Robert A. Schmidt, P.E., Principle
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
DocuSign Envelope ID: 973299E1-52B1-4534-89EE-CBB147B71369 141
City of Goleta
Amendment No. 1 to Agreement No. 2023-079
EXHIBIT A-1
SCOPE OF WORK
Scope of Services
Consultant shall assist with City Encroachment Permits, up to 20 hours per week, which shall include but not be limited to:
- Using Magnet processing software.
- Access to City files for permit purposes only.
- Receive and process Permit applications and extension requests. - Generate Permit number.
- Assign Permit Fees.
- Route DRAFT permits to sub-consultants for review, i.e., traffic control and radio frequency-communications review.
- Track Permit process.
- Assign tasks to City support team.
- Work with and train City support team.
- Provide limited City Inspector vacation encroachment permit field review, anticipated for up to two hundred forty hours (240 hours) per year. - Other responsibilities as designated.
- Attend quarterly utility coordination and pre-construction meetings at City request, up to 12 meetings at City offices.
-Assist with temporary City Encroachment Permit Monitoring/observation, up to 40 hours per work week, which shall include but not limited to:
-Coordination with City for Permit work
-Provide monitoring/observing/field review for compliance of active encroachment permits (up to 1040 hours)
-Daily reports of observed activity; submitted weekly
Services to be provided by the City of Goleta
The City shall perform the following tasks and shall include but not be limited to:
- Process payments from applicants.
- Process F&A invoices.
- Public notices where required.
- Access to City files for permit purposes only.
- Receive and process Permit applications.
- Sign off on City Permits
- Traffic control plan review
DocuSign Envelope ID: 973299E1-52B1-4534-89EE-CBB147B71369 142
City of Goleta
Amendment No. 1 to Agreement No. 2023-079
EXHIBIT B-1
SCHEDULE OF FEES
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ATTACHMENT 8
Professional Services Agreement No. 2023-079 with Flowers and Associates, Inc.
144
City of Goleta
Department of Public Works and Flowers & Associates, Inc.
Project Name: Encroachment Permit Support 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 18th day of July, 2023, by and between the CITY OF GOLETA , a municipal corporation (herein referred to as "CITY"), and FLOWERS & ASSOCIATES, INC., a California Corporation (herein referred to as "CONSULTANT").
SECTION A. RECITALS
1. The CITY has a need for professional encroachment permit support services for encroachment permit processing; 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 18th day of July 2023, approved this AGREEMENT and authorized the City Manager to execute the AGREEMENT.
SECTION B. TERMS
1. RETENTION AS CONSULTANT
CITY hereby retains CONSULTANT, and CONSULTANT hereby accepts such engagement, to perform the services described in Section 2.
CONSULTANT warrants it has the qualifications, experience, and facilities to properly and timely perform said services.
2. DESCRIPTION OF SERVICES
The services to be performed by CONSULTANT are as follows:
Professional Encroachment Permit Support Services in conjunction with City encroachment permits. Services shall generally include assistance in processing encroachment permits for both private and
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Department of Public Works and Flowers & Associates, Inc.
public right-of-way projects as more particularly set forth in the Scope of Work, attached as Exhibit “A,” and incorporated herein.
CONSULTANT shall deliver to CITY the deliverables defined in Exhibit “A.”
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 $238,690 (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 June 30, 2024, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT for all work described under this AGREEMENT.
(b) Payment. CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification shall be in a form satisfactory to CITY's Project Manager, as described in Section 5.
Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including a list of ho urs worked by personnel classification).
All payments shall be made within 30 days after CITY’s approval of the invoice.
4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY authorized extra services, not reasonably included within the services described in Section 2, as mutually agreed to writing in advance of the incurrence of extra services by CONSULTANT. Unless CITY and CONSULTANT have agreed in writing before the performance of extra services, no liability and no right to claim compensation for such extra services or expenses shall exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit B, if one is included as part of this agreement. Any compensat ion for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section 3.
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
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 Melissa Angeles, Assistant Engineer. 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 June 30, 2024, 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 SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY. Alan H. Chierici, Vice President, 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 prog ress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this AGREEMENT. This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
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 limited to, monetary or property damage, lost profit, personal injury, wrongful death, general liability, automobile, infringement of copyright/patent/trademark, or professional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of CONSULTANT or any of CONSULTANT’s offi cers, agents, employees, representatives, subconsultants, or subc ontractors, or the willful misconduct of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subc ontractors, in performing the services described in, or normally associated with, th is 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.
10. INSURANCE
CONSULTANT shall, at CONSULTANT's sole cost and expense, provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating of A- or better, Class VI I or better, or as otherwise approved by CITY.
Insurance shall include the following (or broader) coverage:
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Department of Public Works and Flowers & Associates, Inc.
a) Insu rance 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 limi t 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 with respect to the limits of the insur er’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance policies inception date, continuity date, or retroactive date must be before the effective date of this agreement. CONSULTANT agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
d) Except for professional liability insurance, liability coverage shall be primary and non-contributing with any insurance maintained by CITY.
e) Evidence of coverage (includi ng the workers’ compensation and employer’s liability policies) shall pro vide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days’ prior written notice has been given to CITY.
Such provision shall not include any li mitation of liability of the insurer for failure to provide such notice.
f) No liability insurance coverage provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT ’s
employees, or agents, from waiving the right of recovery prior to a loss. CONSULTANT waives its right of recovery against CITY.
g) CONSULTANT agrees to deposit with CITY within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) There shall be no recourse against CITY for payment of premiums or other amounts with respect to the insurance required to be provided by CONSULTANT hereunder. Any failure, actual or alleged, on the part of CITY to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of CITY. CITY has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this AGREEMENT does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONSULTANT or CITY will withhold amounts sufficient to pay premium from CONSULTANT payments.
i) CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this AGREEMENT. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY.
11. RELATIONSHIP OF CONSULTANT TO CITY
The relationship of the CONSULTANT to CITY shall be that of an independent contractor and that in no event shall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely responsible for any workers compensat ion insurance, withholding taxes,
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Department of Public Works and Flowers & Associates, Inc.
unemployment insurance, and any other employer obligations associated with the described work.
12. CORRECTIONS
In addition to the above indemnification obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed during CITY's review of CONSULTANT's report or plan s. Should CONSULTANT fail to make such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
CITY, by notifying CONSULTANT in writing, may upon 10 calendar days notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If te rmination is for cause, no notice period need be given. In the event of termination, CONSULTANT shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following s ubmission of a final statement by CONSULTANT unless termination is for cause. In such event, CONSULTANT shall be compensated only to the extent required by law.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under this AGREEMENT shall operate as and be a release of CITY from all claims and liabilities for compensation to CONSULTA NT for anything done, furnished, or relating to CONSULTANT'S work or services. Acceptance of payment shall be any negotiation of CITY's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check.
However, approval or payment by CITY shall not constitute, nor be deemed, a release of the responsibility and liability of CONSULTANT, its employees, subcontractors, agents and CONSULTANTs for the accuracy and competency of the information provided and/or work per formed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT, its employees, subcontractors, agents and consultants.
15. AUDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with re spect to all matters covered by this AGREEMENT and will permit CITY to audit, examine and/or reproduce such
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and proje ct records for at least two years after termination or final payment under this AGREEMENT.
16. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the othe r party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written wa iver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this AGREEMENT, or at law or in equity, shall be cumulative and alternative, and inv ocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT is unaware of any CITY employee or official that has a financial interest in CONSULTANT'S business. During the term of this AGREEMENT and/or as a result of being awarded this AGREEMENT, CONSULTANT shall not offer, encourage or accept any financial interest in CONSULTANT'S business by any CITY employee or official.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties.
Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
20. GOVERNING LAW
This AGREEMENT, and the rights and obl igations of the parties, shall be governed and interpreted in accordance wi th the laws of the State of California.
Should litigation occur, venue shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
CONSULTANT shall not discriminate on the basis of race, color, gender, gender identity/expression, pregnancy, se xual orientation, disability, marital status, or any other characteristic protected under applicable federal or state law.
22. TAXPAYER IDENTIFICATION NUMBER
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, Form W-9 (Rev. October 2018), as issued by the Internal Revenue Service.
23. NON-APPROPRIATION OF FUNDS
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shall cover only those costs incurred up to the conclusion of the current fiscal year.
24. MODIFICATION OF AGREEMENT
The tasks described in this AGREEMENT and all other terms of this AGREEMENT may be modified only upon mutual written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this AGREEMENT.
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
27. CAPTIONS
The captions or headings in this AGREEMENT are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authorized the execution of this AGREEMENT on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subs idiaries, agents, employees, successors, assigns, principals, partners, joint ventur ers, insurance carriers and any others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT'S proposals and submitted representations for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services.
30. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenfo rceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Robert Nisbet, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attn: Alan H. Chierici, Vice President
Flowers & Associates, Inc.
115 W. Canon Perdido Street
Santa Barbara, CA 93101
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
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
_____________________________ _____________________________ Robert Nisbet, City Manager Alan H. Chierici, Vice President
A T T E S T
_____________________________ _____________________________ Deborah Lopez, City Clerk Robert A. Schmidt, P.E., Principal
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
EXHIBIT A
SCOPE OF WORK
Scope of Services
Consultant shall assist with City Encroachment Permits, up to 20 hours per week, which shall include but not be limited to:
- Using Magnet processing software.
- Access to City files for permit purposes only.
- Receive and process Permit applic ations and extension requests. - Generate Permit number.
- Assign Permit Fees.
- Route DRAFT permits to sub-consultants for review, i.e., traffic control and radio frequency-communications review.
- Track Permit process.
- Assign tasks to City support team.
- Work with and train City support team.
- Provide limited City Inspector vacation encroachment permit field review, anticipated for up to two hundred forty hours (240 hours) per year. - Other responsibilities as designated.
- Attend quarterly utility coordination and pre-construction meetings at City request, up to 12 meetings at City offices.
Services to be provided by the City of Goleta
The City shall perform the following tasks and shall include but not be limited to:
- Process payments from applicants.
- Process F&A invoices.
- Public notices where required.
- Access to City files for permit purposes only.
- Receive and process Permit applications.
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City of Goleta
Department of Public Works and Flowers & Associates, Inc.
EXHIBIT B
SCHEDULE OF FEES
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