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13. Review actual Project contractor performance throughout the day and discuss discrepancies with the contractor as they occur.
14. Assist in coordination of engineering support, surveying, specialty inspections, and fieldwork by utility companies.
15. Ensure compliance of Underground Service Alert notification/delineation.
16. Evaluate the Project contractor’s operation and production with respect to quality and progress and report to the City’s Project Manager and Construction Manager.
17. Photograph continuous property frontages along the street alignment once prior to construction and once immediately following construction.
18. Closely monitor testing results and require the Project contractor to provide corrective measures to achieve compliance.
19. Maintain copies of all permits needed to construct the Project and enforce special requirements of each.
20. Analyze delays and review claims on a timely basis and make recommendations to the construction manager.
21. Assist with the review and evaluation of up to three (3) change orders.
II. As part of the Services, Consultant will prepare and deliver the following tangible work products to City:
A. In addition to any deliverable tangible work products identified in this Agreement and the Detailed Scope of Work, Consultant shall provide tangible work products as may be reasonably requested by the City from time-to-time.
B. Maintain a photographic record of key elements of each major operation of work each day, with increased detail in situations of potential changes or claims.
C. Maintain and submit a clean set of plans marked in red for as-built corrections on record drawings to be filed with the City. (City’s design consultant will transfer the contractor’s record drawings to original Mylar drawings).
D. Schedule a final inspection with the City and applicable agencies; prepare, distribute, and inspect corrections to the final punch list for completion; and recommend final acceptance.
E. Prepare documentation for final payment to the Project contractor.
F. Upon Project completion, provide the finished set of Project workbooks to the City.
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III. In addition to the requirements of Section 6.2, during performance of the Services, Consultant will keep City appraised of the status of performance by delivering the following status reports:
A. Detailed daily diary inspector reports on construction progress.
B. Clear and concise letters and memoranda, as needed. Establish a solid paper trail.
C. Field file bound workbooks and Willdan Engineering electronic file during construction, including a cumulative record of quantities constructed, daily and weekly reports, working day reports, change order documentation, photographs, and other documentation.
D. Prepare a punch list at substantial completion and follow up with the Project contractor regarding progress of corrections.
E. Provide complete measurements and calculations documented to administer progress payments.
F. Consultant shall provide such status reports, including meetings and/or conference calls, as may be needed by the City from time-to-time, including those status reports identified in the Detailed Scope of Work. If any meetings and/or conference calls are held, Consultant shall also prepare the necessary meting agendas and meeting minutes.
IV. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
V. Consultant will utilize the following personnel to accomplish the Services:
A. Mr. Joe Putrino, Construction Manager/Senior Public Works Inspector B. Resident engineers
C. Construction managers
D. Construction inspectors
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EXHIBIT “A-1”
SCOPE OF WORK
01247.0001/1013746.2 9/4/2024 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
If the Parties wish to revise provisions in the Agreement above (from page 1 through the signature page), then the revisions shall be presented in this Exhibit B, with deletions shown in strike through and additions shown in bold and italics.
NONE.
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks at the following rates:
II. A retention of ten percent (10%) shall be held from each payment as a contract retention to be paid as part of the final payment upon satisfactory completion of services.
III. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
IV. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.
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V. The total compensation for the Services shall not exceed Thirty-Six Thousand Two Hundred and Twenty Dollars and Zero Cents ($36,240.00) as provided in Section
2.1 of this Agreement.
VI. Consultant’s billing rates for all personnel are attached as Exhibit “C-1”.
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EXHIBIT “C-1”
CONSULTANT PERSONNEL BILLING RATES
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EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform and complete all Services timely in accordance with the schedule to be developed by Consultant and subject to the written approval of the Contract Officer and the City Attorney’s office.
II. Consultant shall deliver the following tangible work products, as described in Exhibit “A” to City within 30 working days from the date of Notice to Proceed issued by the Contract Officer (the “Schedule”). Contractor shall complete all work consistent with City requirements within 30 working days of the Notice to Proceed, but in no event shall the work extend beyond 90 working days .
III. The Contract Officer may approve extensions for performance of the services beyond 90 days in accordance with Section 3.2.
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01247.0006/868565.1
01247.0006 2004154.1 5/6/2025
PUBLIC WORKS AGREEMENT
By and Between
CITY OF GRAND TERRACE
and
ONYX PAVING COMPANY, INC.
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AGREEMENT FOR PUBLIC WORKS SERVICES
BETWEEN THE CITY OF GRAND TERRACE AND
ONYX PAVING COMPANY, INC.
This AGREEMENT FOR PUBLIC WORKS SERVICES BETWEEN THE CITY OF GRAND TERRACE AND ONYX PAVING COMPANY, INC. (herein “Agreement”) is made and entered into this 1 3 t h day of May, 2025 by and between the City of GRAND TERRACE, a California municipal corporation (“City”) and ONYX PAVING COMPANY, INC., a California corporation (“Contractor”). City and Contractor may be referred to, individually or collectively, as “Party” or “Parties,” respectively.
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by City to perform those services.
C. Pursuant to City of Grand Terrace Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. WORK OF CONTRACTOR
1.1 Scope of Work.
In compliance with all terms and conditions of this Agreement, Contractor shall provide those services specified in the “Scope of Work” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder. As a material inducement to City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the work required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all
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materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Bid Documents.
The Scope of Work shall include the “General Provisions” and “Special Provisions” in the Bid Documents for the project entitled “2025-26 Capital Improvement Project (“Project”), as well as the Contractor’s Proposal for the “Pavement Rehabilitation on Brentwood Street from Mt. Vernon to Preston Street, Grand Terrace Rd. from Mt. Vernon to Grand Terrace Court, Michigan Ave.
From De Berry St. to Van Buren St.,” including any documents or exhibits referenced therein (collectively, “Bid Documents”), all of which are incorporated herein by this reference. In the event of any inconsistency between the terms of the Bid Documents and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Contractor shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Incorporation of Green Book.
The provisions of the 2024 Edition of the Standard Specifications for Public Works Construction, as updated by errata, (“Greenbook”) are incorporated herein, except as explicitly modified by the Bid Documents. In the event of any conflict between the provisions of the Greenbook and this Agreement, the terms of this Agreement shall govern.
1.5 Compliance with California Labor Law.
(a) Public Work. The Parties acknowledge that the work to be performed under this Agreement is a “public work” as defined in California Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages. Contractor shall pay prevailing wages to the extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request. By initiating any work under this Agreement, Contractor acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where work is performed under this Agreement. (c) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing
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wages. Contractor shall, as a penalty to City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (d) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury; certify and make such payroll records available for inspection; and inform City of the location of the records. (e) Apprentices. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects.
Contractor shall be responsible for compliance with these aforementioned Sections for all occupations capable of apprenticeship. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day. Contractor acknowledges that eight (8) hours of labor constitutes a legal day’s work. Contractor shall comply with and be bound by Labor Code Section 1810.
(g) Penalties for Excess Hours. Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. Contractor shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1½) times the basic rate of pay.
(h) Workers ’ Compensation . Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees. In accordance with the provisions of Labor Code Section 1861, Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Contractor’s Authorized Initials
(i) Contractor’s Responsibility for Subcontractors. For every
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subcontractor who will perform work under this Agreement, Contractor shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement. Contractor shall take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.6 Licenses, Permits, Fees and Assessments.
Contractor shall obtain at its sole cost and expense such licenses, permits, registrations, and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Contractor’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.7 Familiarity with Work.
(a) By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of work to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder.
(b) Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (i) material Contractor believes may be hazardous waste as defined in Section 25117 of the Health & Safety Code required to be removed to a Class I, II, or III disposal site in accordance with existing law; (ii) subsurface, unknown or latent conditions, materially different from those indicated; or (iii) unknown physical conditions at the site of any unusual nature, different from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, and will materially affect the performance of the services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform City of such fact and shall not proceed except at Contractor’s sole risk until written instructions are received from the Contract Officer. (c) City shall promptly investigate the conditions, and if it finds that the conditions do materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work, shall issue a change order per Section 1.11 of this Agreement.
(d) In the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or
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increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date set, but shall proceed with all work to be performed under the Agreement. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting Parties.
(e) City will compensate Contractor to the extent required by Government Code Section 4215 by issuing a change order per Section 1.11 of this Agreement.
1.8 Protection and Care of Work and Materials.
Contractor shall adopt reasonable methods, including providing and maintaining storage facilities, during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as caused by City’s own negligence. Stored materials shall be reasonably accessible for inspection by City. Contractor shall not, without City’s consent, assign, sell, mortgage, hypothecate, or remove equipment or materials which have been installed or delivered and which may be necessary for the completion of the work.
1.9 Warranty.
Contractor warrants all work under the Agreement (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one (1) year (or the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by City of any defect in the work or non-conformance of the work to the Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act as soon as requested by City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair, remove and replace any portions of the work (or work of other contractors) damaged by its defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor's obligation hereunder to correct defective work shall be reinstated for an additional one ( 1 ) year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of City, regardless of whether or not such warranties and guarantees have been transferred or assigned to City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of City, City shall have the right to correct and replace any defective or nonPage 332 of 742 -6-
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conforming work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse City for any expenses incurred hereunder upon demand.
1.10 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible for the service of the other.
1.11 Additional Work and Change Orders.
(a) City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Work or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Contractor (“Change Order”). All Change Orders must be signed by Contractor and Contract Officer prior to commencing the extra work thereunder.
(b) Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or any increase in the time to perform of up to one hundred eighty (180) days; and does not materially affect the Scope of Work and which are not detrimental to the Scope of Work or to the interest of City, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council.
(c) Any adjustment in the Contract Sum for a Change Order must be in accordance with the rates set forth in the Schedule of Compensation in Exhibit “C”. If the rates in the Schedule of Compensation do not cover the type of work in the Change Order, the cost of such work shall not exceed an amount agreed upon in writing and signed by Contractor and Contract Officer. If the cost of the Change Order cannot be agreed upon, City will pay for actual work of the Change Order completed, to the satisfaction of City, as follows:
(i) Labor: the cost of labor shall be the actual cost for wages of workers and subcontractors performing the work for the Change Order at the time such work is done. The use of labor classifications that would increase the cost of such work shall not be permitted.
(ii) Materials and Equipment: the cost of materials and equipment shall be at cost to Contractor or lowest current price which such materials and equipment are reasonably available at the time the work is done, whichever is lower.
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(iii) If the cost of the extra work cannot be agreed upon, Contractor must provide a daily report that includes invoices for labor, materials and equipment costs for the work under the Change Order. The daily report must include: list of names of workers, classifications, and hours worked; description and list of quantities of materials used; type of equipment, size, identification number, and hours of operation, including loading and transportation, if applicable; description of other City authorized services and expenditures in such detail as City may require. Failure to submit a daily report by the close of the next working day may, at City’s sole and absolute discretion, waive Contractor’s rights for that day. (d) It is expressly understood by Contractor that the provisions of this Section 1.11 shall not apply to services specifically set forth in the Scope of Work. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Work may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. (e) No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
1.12 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibi t “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed $532,000.00 (Five Hundred and Thirty Two Thousand Dollars and No Cents (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.11.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services less the contract retention; (iii) payment for time and materials based upon Contractor’s rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
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and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of the Agreement. The invoice shall contain all information specified in Exhibit “C”, and shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories.
Contractor shall not invoice City for any duplicate services performed by more than one person.
City shall, as soon as practicable, independently review each invoice submitted by Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Contractor to be paid within forty-five (45) days of receipt of Contractor’s correct and undisputed invoice; however, Contractor acknowledges and agrees that due to City warrant run procedures, City cannot guarantee that payment will occur within this time period. In the event that City does not cause Contractor to be paid within forty-five (45) days of receipt of an undisputed and properly submitted invoice, Contractor shall be entitled to the payment of interest to the extent allowed under Public Contract Code Section 20104.50. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor, not later than seven (7) days after receipt by City, for correction and resubmission. Returned invoices shall be accompanied by a document setting forth in writing the reasons why the payment request was rejected. Review and payment by City of any invoice provided by Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver.
Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
2.6 Substitution of Securities.
(a) In conformance with the State of California Public Contract Code, Part 5, Section 22300, Contractor may substitute securities for any monies withheld by the City to ensure performance under this Agreement.
(b) At the request and expense of Contractor, Contractor has the option of establishing an escrow account with a state or federally chartered bank which shall serve as an escrow agent, for Contractor’s direct deposit of securities as a substitute for retention earnings required to be withheld by City. Upon Contractor’s completion of its obligations hereunder, as evidenced by City’s acceptance of the work pursuant to Section 3.3 hereof, the escrow agent shall return the securities to Contractor. The escrow agent shall notify City within ten (10) days after
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deposit of the securities. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention. Securities shall be held in the name of City and shall designate Contractor as the beneficial owner. Alternatively, on written request of Contractor, City shall make payments of the retention earnings directly to the escrow account.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this reference. When requested by Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Inspection and Final Acceptance.
City may inspect and accept or reject any of Contractor’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Contractor’s work within forty-five (45) days after submission to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as to amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Articles 1 and 5, pertaining to warranty and indemnification and insurance, respectively.
3.5 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this
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Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit “D”) .
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor.
The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Corey R. Kirschner CEO
Jay Kirschner Senior Project Manager
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principals were a substantial inducement for City to enter into this Agreement.
Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder.
All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Contractor.
Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be the City Manager or such person as may be designated by the City Manager. It shall be Contractor’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer.
The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.
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4.4 Independent Contractor.
Neither City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. All subcontractors shall obtain, at its or Contractor’s expense, such licenses, permits, registrations and approvals (including from City) as may be required by law for the performance of any services or work under this Agreement. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
Without limiting Contractor’s indemnification of City, and prior to commencement of any services under this Agreement, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City which shall cover all elected and appointed officers, employees and agents of City.
(a) General liability insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
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(b) Automobile liability insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c) Professional liability (errors & omissions) insurance. Contractor shall maintain 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 and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Contractor agrees to maintain continuous coverage through a period no less than five (5) consecutive years after completion of the services required by this Agreement. (d) Workers ’ compensation insurance . Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
(e) Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
(b) Duration of coverage. Contractor shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Contractor, its agents, representatives, employees or subcontractors. (c) Primary/noncontributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City before City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcem ent . In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium
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paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Agreement. (e) Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of “A” (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
(g) Enforcement of contract provisions (non-estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If Contractor maintains higher limits than the minimums shown above, City requires and shall be entitled to coverage for the higher limits maintained by Contractor.
Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
(i) Notice of cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
(j) Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of
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liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause. Contractor agrees to ensure that its subcontractors and any other party involved with the project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. (n) Agency’s right to revise specifications . City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely notice of claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(q) Additional insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
5.3 Indemnification.
To the full extent permitted by law, Contractor agrees to indemnify, defend and hold harmless City, its officers, employees and agents (“Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable (“indemnitors”), or arising from Contractor’s or indemnitors’ reckless or willful misconduct, or arising from Contractor’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against City,
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its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold City, its officers, agents, and employees harmless therefrom;
(c) In the event City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to City, its officers, agents or employees, any and all costs and expenses incurred by City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.
In addition, Contractor agrees to indemnify, defend and hold harmless the Indemnified Parties from, any and all claims and liabilities for any infringement of patent rights, copyrights or trademark on any person or persons in consequence of the use by the Indemnified Parties of articles to be supplied by Contractor under this Agreement, and of which Contractor is not the patentee or assignee or has not the lawful right to sell the same.
Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Contractor in the performance of professional services and work hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Contractor and shall survive termination of this Agreement.
5.4 Notification of Third-Party Claims.
City shall timely notify Contractor of the receipt of any third-party claim relating to the work under this Agreement. City shall be entitled to recover from Contractor its reasonable costs incurred in providing such notification.
5.5 Performance and Labor Bonds.
Concurrently with execution of this Agreement, Contractor shall deliver to City the following:
a. A performance bond in the amount of the Contract Sum of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement (“Performance Bond”).
b. A labor and materials bond in the amount of the Contract Sum of this Agreement, in the form provided by the City Clerk, which secures the payment of all persons furnishing labor and/or materials in connection with the work under this Agreement (“Labor
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Bond”).
Both the Performance Bond and Labors Bond required under this Section 5.5 shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if Contractor promptly and faithfully performs all terms and conditions of this Agreement and pays all labor and materials for work and services under this Agreement. The bonds shall be in the form as provided in Exhibits “A-2” and “A-3” as applicable.
5.6 Sufficiency of Insurer or Surety.
Insurance and bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best’s Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better. If City determines that the work to be performed under this Agreement creates an increased or decreased risk of loss to City, the Contractor agrees that the minimum limits of the insurance policies and the bonds may be changed accordingly upon receipt of written notice from City’s Risk Manager.
5.7 Substitution of Securities.
Pursuant to Public Contract Code Section 22300, substitution of eligible equivalent securities for any funds withheld to ensure performance under this Agreement may be permitted at the request and sole expense of Contractor. Alternatively, Contractor may, pursuant to an escrow agreement in a form prescribed by Public Contract Code Section 22300, request payment of retentions funds earned directly to the escrow agent at the sole expense of Contractor.
5.8 Release of Securities.
City shall release the Performance Bond and Labor Bond when the following have occurred:
(a) Contractor has made a written request for release and provided evidence of satisfaction of all other requirements under Article 5 of this Agreement; (b) the Work has been accepted; and
(c) after passage of the time within which lien claims are required to be made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the Labor Bond until such claims have been resolved, Contractor has provided statutory bond, or otherwise as required by applicable law.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of payroll records in compliance with all applicable laws, or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as
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shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of t h r e e ( 3) years following completion of the services hereunder, and City shall have access to such records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the books and records may be given to City, and access shall be provided by Contractor’s successor in interest. Notwithstanding the above, Contractor shall fully cooperate with City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by Contractor will be at City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, reuse or assignment. Contractor may retain copies of such documents for its own use.
Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in
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the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Contractor, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena. (c) If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Contractor’s conduct. (d) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.
7.2 Disputes.
(a) Default; Cure. In the event that Contractor is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, City shall hold all invoices and shall proceed with payment on the invoices only when the default is cured. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not
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cure the default, City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of City to give notice of Contractor’s default shall not be deemed to result in a waiver of City’s legal rights or any rights arising out of any provision of this Agreement. (b) Dispute Resolution. This Agreement is subject to the provisions of Article 1.5 (commencing at Section 20104) of Division 2, Part 3 of the California Public Contract Code regarding the resolution of public works claims of less than $375,000. Article 1.5 mandates certain procedures for the filing of claims and supporting documentation by Contractor, for the response to such claims by City, for a mandatory meet and confer conference upon the request of Contractor, for mandatory non-binding mediation in the event litigation is commenced, and for mandatory judicial arbitration upon the failure to resolve the dispute through mediation. This Agreement hereby incorporates the provisions of Article 1.5 as though fully set forth herein.
7.3 Retention of Funds.
Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor’s acts or omissions in performing or failing to perform Contractor’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Contractor to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.6 Legal Action.
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In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to City the sum of One Thousand Dollars ($1,000) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit “D”). City may withhold from any monies payable on account of services performed by Contractor any accrued liquidated damages. Pursuant to Government Code Section 4215, Contractor shall not be assessed liquidated damages for delay in completion of the project when such delay was caused by the failure of the public agency or owner of the utility to provide for removal or relocation of utility facilities.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Contractor, except that where termination is due to the fault of Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, Contractor reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of City, the period of notice may be such shorter time as Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event Contractor has initiated termination, Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Contractor.
If termination is due to the failure of Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Contractor for the purpose of set-off or partial payment of the amounts owed City as previously stated.
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7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a Party to any action or proceeding in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any appeal, and in addition Party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
7.11 Unfair Business Practices Claims.
In entering into this Agreement, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the California Business and Professions Code), arising from purchases of goods, services or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contractor without further acknowledgment of the Parties.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.1 Conflict of Interest.
Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.2 Covenant Against Discrimination.
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Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class.
8.3 Unauthorized Aliens.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Grand Terrace, 22795 Barton Road, Grand Terrace, California 92313, and in the case of Contractor, to the person at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. All correspondence relating to this Agreement shall be serialized consecutively.
9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts and Electronic Signatures.
This Agreement may be executed in two or more counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and Adobe Sign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the
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same legal effect, validity and enforceability as a manually executed signature or use of a paperbased record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transactions Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Contractor and by the City Council. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Contractor warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement.
Contractor further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Contractor is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect. Nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation, including but not limited to the Political Reform Act (Government Code
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Sections 81000, et seq.).
Contractor’s Authorized Initials ______________
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that(i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
City of Grand Terrace, a municipal corporation
ATTEST:
Konrad Bolowich, City Manager
Daysi Alcocer, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Adrian R. Guerra, City Attorney
CONTRACTOR:
Onyx Paving Company, INC.
By:
Name: Corey R. Kirschner
Title: C E O a n d P r e s i d e n t
By:
Name: Jay Kirschner
Title: Senior Project Manager
Address: 2890 E. La Cresta Ave.
Anaheim, CA 92806
Two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR’S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR’S BUSINESS ENTITY.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On , 2025 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT SI
(
INDIVIDUAL
CORPORATE OFFICER
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES))
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On , 2025 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT SI
(
INDIVIDUAL
CORPORATE OFFICER
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES))
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
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EXHIBIT “A”
SCOPE OF WORK
I. Contractor shall perform the Capital Improvement Project (CIP 2025-26) including any documents or exhibits referenced therein. The scope of work shall include the Bid Documents including, but not limited to, Contractor’s Proposal for the “Pavement Rehabilitation on Brentwood Street from Mt. Vernon to Preston Street, Grand Terrace Rd. from Mt. Vernon to Grand Terrace Court, Michigan Ave. From De Berry St. to Van Buren St.,” including any documents or exhibits referenced therein (collectively, “Bid Documents”), and those bid specifications and documents provided in Exhibits “A” and “A-1”.
II. Brief description of the work to be performed:
A. 2025-26 Capital Improvement Project CIP No. 2025-1 in accordance with approved plans, specifications, Addenda 1 and submitted proposal. This includes, but is not limited to, the removal and replacement of existing asphalt paving (various depths) at designated locations shown on the plans; cold mill existing AC 2” deep and construct 2” asphalt rubber hot mix (ARHM) overlay; reinstall pavement markings and striping, and remove and replace concrete sidewalk, driveway and curb & gutter.
III. In addition to the requirements of Section 6.2, during performance of the work, Contractor will keep City apprised of the status of performance by delivering status reports as may be required by City from time to time.
IV. All work is subject to review and acceptance by City, and must be revised by Contractor without additional charge to City until found satisfactory and accepted by City.
V. Contractor shall provide safe and continuous passage for pedestrian and vehicular traffic in accordance with the Work Area Traffic Control Handbook (“WATCH”), latest edition.
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EXHIBIT “A-1”
BID SPECIFICATIONS AND DOCUMENTS
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EXHIBIT “A-2”
PERFORMANCE BOND
We, _____________, a California corporation, as Principal, and ____________, as Surety, jointly and severally, firmly bind ourselves, our heirs, representatives, successors and assigns, as set forth herein, to the City of Grand Terrace (“City”) for payment of the penal sum of Five Hundred Thirty Two U.S. Dollars and Zero Cents ($532,000.00). City and Principal have entered into an agreement, or are about to enter into the agreement attached hereto and incorporated by reference herein, for completion of public works for the property(ies) referenced in said agreement. Surety herein approves of the terms and conditions of said agreement and binds itself to faithfully perform the obligations of Principal therein if Principal fails to so perform. Surety acknowledges that the agreement herein referenced shall be that document as executed by City and Principal.
THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal shall in all things stand to and abide by, and well and truly keep and perform all of the covenants, conditions, and provisions in said agreement, and any alteration thereof made as therein provided, on Principal's part to be kept and performed at the time and in the manner therein specified, and shall indemnify and save harmless the City, City’s engineer, and their consultants, and each of their officials, directors, officers, employees and agents, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect.
Surety agrees that should it fail to take over and diligently perform the agreement upon Principal's default after notice and within the time specified in the agreement, Surety will promptly on demand deposit with City such amount as City may reasonably estimate as the cost of completing all of Principal's obligations. Surety's obligation for payment herein shall exist, notwithstanding any controversy between Principal and City regarding Principal's failure under the agreement, and payment by Surety should be conclusively presumed between the parties herein to relieve, as demanded, Surety's obligations herein and shall be deemed proper payment as between Principal and Surety.
Surety agrees that no change, extension of time, alteration, or addition to the terms of the agreement, or the work to be performed thereunder or the plans and specifications, or any matters unknown to Surety which may affect Surety's risk shall in any wise affect its obligation on this bond, and it does thereby waive notice thereof.
Principal and Surety agree that if the City is required to engage the services of an attorney in connection with the enforcement of this bond, each shall pay City's reasonable attorneys' fees incurred, with or without suit, in addition to the above sum.
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Executed this day of , .
Seal of Corporation
By:
Authorized Representative of Principal
Title:
(ATTACH ACKNOWLEDGEMENT OF AUTHORIZED REPRESENTATIVES)
Any claims under this bond may be addressed to: (check one) Surety's agent for service
of process in California: ( )
[name of surety company]
Name Street Number
Street Number City and State
City and State Telephone Number
Telephone Number
By:
Attorney in Fact or other
Representative
(ATTACH ACKNOWLEDGEMENT OF AUTHORIZED REPRESENTATIVE)
Furnish the name, address and phone number of the company agent as well as the surety company.
Sureties must be authorized to do business in and have an agent for service of process in California and be on the accredited list of the United States Treasury Department (their bonds will be limited to such amounts as would be acceptable to the Treasury Department), and otherwise meet the requirements of the agreement.
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EXHIBIT “A-3”
PAYMENT BOND
We, __________, a California corporation, as Principal, and ____________, as Surety, jointly and severally, firmly bind ourselves, our heirs, representatives, successors and assigns, as set forth herein, to the City of Grand Terrace (“City”) and those for whose benefit this bond insures in the sum of Five Hundred and Thirty Two Thousand Dollars and No Cents ($532,000.00). City and Principal have entered into an agreement, or are about to enter into the agreement attached hereto and incorporated by reference herein, for completion of public works for the property(ies) referenced in said agreement. Surety herein approves of the terms and conditions of said agreement and binds itself to faithfully perform the obligations of Principal therein if Principal fails to so perform. Surety acknowledges that the agreement herein referenced shall be that document as executed by City and Principal. If Principal or any of Principal's contractors or subcontractors, fails to pay any of the persons named in Section 9000 et seq. of the California Civil Code employed in the performance of the agreement for materials furnished or for labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, then Surety shall pay the same in an amount not exceeding the sum specified above, and also shall pay, in case suit is brought upon this bond, such reasonable attorneys' fees as shall be fixed by the court.
Surety agrees that it shall pay the amounts due the persons above named and diligently perform the agreement upon Principal's default after notice and within the time specified in the agreement.
If Surety fails to perform within the times specified in the agreement, Surety shall promptly on demand deposit with City such amount as City may reasonably estimate as the cost of completing all of Principal's obligations. Surety's obligation for payment herein shall extend, notwithstanding any controversy between Principal and City regarding Principal's failure under the agreement.
Principal and Surety agree that any payment by Surety pursuant to this paragraph should be conclusively presumed between the Parties herein to relieve, as demanded, Surety's obligation herein and shall be deemed proper payment as between Principal and Surety.
This bond shall insure to the benefit of any and all of the persons named in Section 9000 et seq. of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this bond.
Surety agrees that no change, extension of time, alteration, or addition to the terms of the agreement, or the work to be performed thereunder, or the plans and specifications, or any matters unknown to Surety which might affect Surety's risk, shall in any way affect its obligation on this bond, and it does hereby waive notice thereof.
Principal and Surety agree that should City become a party to any action on this bond, that each will also pay City's reasonable attorneys' fees incurred therein in addition to the above sums.
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Executed this day of _, .
Seal of Corporation
By:
Authorized Representative of Principal
Title:
(ATTACH ACKNOWLEDGEMENT OF AUTHORIZED REPRESENTATIVES)
Any claims under this bond may be addressed to: (check one) Surety's agent for service
of process in California: ( )
[name of surety]
Name Street Number
Street Number City and State
City and State Telephone Number
Telephone Number
By:
Attorney in Fact or other
Representative
(ATTACH ACKNOWLEDGEMENT OF AUTHORIZED REPRESENTATIVE)
Furnish the name, address and phone number of the company agent as well as the surety company.
Sureties must be authorized to do business in and have an agent for service of process in California and be on the accredited list of the United States Treasury Department (their bonds will be limited to such amounts as would be acceptable to the Treasury Department), and otherwise meet the requirements of the agreement.
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EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
NONE
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Contractor shall perform all work at the rates on the Bid Sheet submitted as part of Contractor’s Proposal, and listed below:
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II. A retention of ten percent (10%) shall be held from each payment as a contract retention to be paid as part of the final payment upon satisfactory completion of services.
III. Within the budgeted amounts for each item on the Bid Sheet, and with the approval of the Contract Officer, funds may be shifted from one item’s sub-budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Work is approved per Section 1.11.
IV. City will compensate Contractor for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.
V. The total compensation for the Services shall not exceed $532,000.00 as provided in Section
2.1 of this Agreement.
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EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Contractor shall perform all work timely, including the work described in Exhibit A within 30 working days from the date of Notice to Proceed issued by the Contract Officer.(the “Schedule”). Contractor shall complete all work consistent with City requirements within 30 working days of the Notice to Proceed, but in no event shall the work extend beyond July 23, 2025.
II. The Contract Officer may approve extensions for performance of the services beyond 90 days in accordance with Section 3.2.
AGENDA REPORT
MEETING DATE: May 13, 2025
TITLE: Amendment No. 2 to Hirsch & Associates to Amended and Restated Agreement
PRESENTED BY: Shanita Tillman, Sr. Management Analyst
RECOMMENDATION:
1. Approve Amendment No. 2 with Hirsch & Associates for an additional $141,440 to continue planning and construction support services for the completion of the Blue Mountain Trail Project, with a term ending June 30, 2028.
2. Direct the City Manager to execute the agreement, subject to approval as to form by the City Attorney.
2030 VISION STATEMENT:
This item supports Goal #4 - Develop and Implement Successful Partnerships through the design and planning of the Blue Mountain Trail and Trailhead.
BACKGROUND:
The City owns property at the northeast corner of Van Buren Avenue and Observation Drive. The land was designated for public use and includes a 20-acre parcel intended for future development as a public trail.
To support this vision, the City was awarded a $1,274,000 California Natural Resources Agency (CNRA) grant to construct the Blue Mountain Nature Trail and Trailhead, which would provide legal access for hikers to reach Blue Mountain. Currently, access is only permitted during the annual Blue Mountain Hike. The proposed trail is being designed to connect to an existing access road located on private property.
Progress on the project has been slow, as delays caused by the COVID-19 pandemic impacted engagement with property owners and the broader community, leaving several tasks incomplete.
However, funds remain available within the contract to complete the remaining work.
As of now, the City has expended $130,403.08.
DISCUSSION:
Although the CNRA grant was originally awarded solely for land acquisition, CNRA has since authorized the City to utilize the remaining funds toward the design and construction of the Blue
Mountain Nature Trail project.
The City will proceed with the acquisition of three parcels, and the remaining grant funds will be allocated toward the design and planning development through Hirsch & Associates. Once the final engineering plans are completed, the project will be publicly bid for construction.
The original Request for Proposals (RFP) with Hirsch & Associates included construction support services. However, this component was removed in a prior amendment. Staff now recommends reinstating construction support to advance the project effectively and ensure proper oversight during implementation.
The proposed Amendment No. 2 with Hirsch & Associates, for an additional $141,440, will increase the contract sum to a total of $271,843.08. This amendment will extend the planning and construction support services through June 30, 2028, to ensure the completion of the project.
Under the terms of the CNRA grant, the City has until March 2029 to complete the trail.
ENVIRONMENTAL IMPACT:
The proposed action is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) and will not have a significant effect on the environment.
FISCAL IMPACT:
The proposed amendment in the amount of $141,440 will be charged to Account No. 49-473-700- 000. Sufficient grant funds are available to cover this expense. Any previously expended funds, as well as funds related to this contract, will be recovered through the grant and will impact the total amount of grant funding available for construction.
AMENDMENT NO. 2
TO THE AMENDED AND RESTATED AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF GRAND TERRACE AND HIRSCH & ASSOCIATES, INC This AMENDMENT NO. 2 TO THE AMENDED AND RESTATED AGREEMENT
FOR CONTRACT SERVICES BETWEEN THE CITY OF GRAND TERRACE AND HIRSCH & ASSOCIATES, INC (“Amendment No. 2”) by and between the CITY OF GRAND TERRACE (“City”) and HIRSCH & ASSOCIATES, INC, a California corporation (“Consultant”) is effective as of the ______ day of ______, 2025.
RECITALS
A. In 2019, City sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Grand Terrace Municipal Code, City entered into that certain agreement with Consultant for the services design, engineering, and construction management of the Blue Mountain Trailhead and T r a i l P r o j e c t ( “ P r o j e c t ” ) , defined and described particularly in Article 1 of such agreement and dated February 12, 2019, in the amount of $145,510.00 (“Original Agreement”).
D. Though certain services under the Original Agreement were commenced and completed by Consultant, the COVID-19 pandemic of 2020 and subsequent pandemic measures (such as social distancing and limitations on meetings in groups greater than 10) has delayed the completion of services in the Original Agreement.
E. Thereafter, on February 9, 2021, City and Consultant entered into an Amended and Restated Agreement for Contract Services (“Agreement”) with Consultant to amend and restate the Original Agreement in its entirety and allow the City to utilize the Consultant to complete the services in the Original Agreement.
F. On July 26, 2022, City and Consultant entered into Amendment No. 1 to the Agreement (“Amendment No. 1”) to increase the total compensation under the Agreement by $72,876.00, amend the Scope of Services to include certain services relating to the study of the “Sigdestad property” (Assessor’s Parcel No. 1178-061-01-0000) with an additional compensation increase of $39,995.00, and further increase the total compensation under the Agreement by $112,971.00, bringing the total to $258,381.00.
G. On June 30, 2024, the term of the Agreement expired pursuant to Amendment No. 1, and work on the Project stalled. It is in the City’s best interest to continue utilizing Consultant to complete the services of the Agreement, as Consultant has substantial knowledge and information invested in the Project. Sourcing a new consultant would likely increase City costs and would hinder the progress of the Project due to the time and resources required to bring on a new Consultant.
H. Based on the forgoing, the City wishes to restart and amend the Agreement with the Consultant to proceed and complete the services to phase the Project and allow for future extensions of the trail to be constructed as funding becomes available.
I. City has expended to Consultant a total of $130,403.08 of the Contract Sum over the course of the Project to date. The Consultant has agreed to complete the services under this Amendment No. 2, pursuant to a revised scope of work dated January 17, 2025, for an additional $141,440.00, bringing the total Contract Sum to $271,843.08.
J. The City and Consultant now further desire to enter into this Amendment No. 2 to allow the City to utilize the Consultant to complete the services as provided herein, implementing the previous work and study for trail location access up the slope in this final design phase, and to extend the term of the Agreements such that it will expire on June 30, 2028.
TERMS
1. Contract Amendments. The Agreement is amended as provided herein:
1.1 Section 2.1(a) is hereby amended as follows:
“Subject to any limitation set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, under the Original Agreement and this Agreement, inclusive of its Amendments, shall not exceed $271,843.08 (the “Contract Sum”), unless additional compensation is approved pursuant to Section
1.8.”
1.2 Section 2.1(b) is hereby amended as follows:
“The Consultant acknowledges and agrees that the City has compensated Consultant in the amount of $127,393.00 pursuant to the Original Agreement for the tasks marked as “(COMPLETE)” as shown in Exhibit “A”. Consultant agrees that Consultant shall only be compensated for the completion of tasks marked as “(INCOMPLETE)” as provided in Exhibit “A”, but in no event shall compensation exceed $141,440.00 for tasks marked as "(INCOMPLETE)” as set forth above.”
1.3 Exhibit “A” is hereby amended and replaced in its entirety with Exhibit “A”, attached hereto.
1.4 Section V of Exhibit “C” shall be amended as follows:
“The total compensation for the Services under the Original Agreement and this Agreement shall not exceed $271,843.08 as provided in Section 2.1 of this Agreement.”
1.5 Exhibit “C-1” is hereby amended and replaced in its entirety with Exhibit “C-1” attached hereto.
1.6 Section III of Exhibit “D” is hereby amended as follows:
“Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect from and after the Effective Date of this Agreement until June 30, 2028 (“Term”).”
2. Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by Amendment No. 2.
3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and Consultant each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement. Each party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided herein. Each party represents and warrants to the other that the Agreement is currently an effective, valid, and binding obligation.
Consultant represents and warrants to City that, as of the date of this Amendment No. 2, City is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement.
City represents and warrants to Consultant that, as of the date of this Amendment No. 2, Consultant is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement.
4. Adequate Consideration. The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.
5. Authority. The persons executing this Amendment No. 2 on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 2 on behalf of said party, (iii) by so executing this Amendment No. 2, such party is formally bound to the provisions of the Agreement, as amended and (iv) the entering into this Amendment No. 2 does not violate any provision of any other agreement to which said party is bound.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. __ on the date and year first-above written.
CITY:
CITY OF GRAND TERRACE,
a municipal corporation
___________________________
Konrad Bolowich, City Manager
ATTEST:
___________________________
Daysi Alcocer, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
_______________________
Adrian R. Guerra, City Attorney
CONSULTANT:
Hirsch & Associates, Inc,
a California corporation
By:
Name: Charles Foley
Title: President
Address: 2221 East Winston Road, Suite A
Anaheim, California, 92806
NOTE: CONSULTANT’S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY
THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER’S BUSINESS ENTITY .
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On __________, 2025 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED
DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_________________________
________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
______________________________________
______________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED
ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On __________, 2025 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED
DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_________________________
________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
______________________________________
______________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED
ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant has performed certain Tasks in this Exhibit “A” pursuant to the Original Agreement and Amendment No. 1; however, due to the delays, certain Tasks are incomplete. As provided below, Tasks that have been complete are marked as “(COMPLETE)” and Tasks that have not been completed are marked “(INCOMPLETE)”. For a Task marked “(INCOMPLETE)” and only has a certain percentage remaining, then the approximate remaining percentage incomplete will also be shown below.
Consultant will perform the following Services:
SERVICES
A. Consultant shall provide the following Services (detailed further in the phases provided below):
i. (INCOMPLETE) Consultant shall provide the design, engineering and construction management of the Blue Mountain Trailhead and Trail Project, which includes a new Trail Head, Parking Lot, Trail and identified amenities, located at the site depicted in Exhibit “A-1” (“Project”). ii. (COMPLETE) Contractor shall perform all the necessary professional landscape architectural and engineering services in a timely and professional manner consistent with the standards of the profession. iii. (INCOMPLETE) Contractor shall provide overall Project management, Project scheduling and consult with all parties and team members throughout the entire length of the project.
iv. (COMPLETE) Contractor shall also meet with City Staff, and others as directed to establish communications and formulate working relationships. v. (INCOMPLETE) Contractor shall participate in consultations and conferences with City Staff and other agencies having jurisdiction over the Project that may be necessary for the completion of the Project. Such consultations and conferences shall continue throughout the project duration. Communication will include a combination of email, telephone and in person meetings at City Hall and/or project site. vi. (INCOMPLETE) Contractor shall provide advice and assistance in determining the feasibility of the Project, analyze the type and quality of materials and construction methods to be selected, and other initial planning matters.
vii. (INCOMPLETE) Contractor shall use its best judgment in determining the balance between the size, type and quality of construction to achieve a satisfactory solution to maintain the City’s stated budget.
PHASE I
B. Task 1 - Administration
i. (INCOMPLETE) This task includes the project management services including the requirements for meeting documentation, project schedules, progress reports, invoicing, and administration of Consultant work. ii. (COMPLETE) Consultant shall coordinate with the City to schedule a kickoff within 3 working days of the Task Order/Notice to proceed to review Project objectives and requirements, receive initial information from City/Utilities, establish the communication plan and protocols, baseline delivery schedule, and address other issues as necessary to ensure successful Project initiation.
iii. (INCOMPLETE) Consultant Deliverables: Project Schedule, Progress Reports, Meeting Notes and invoices.
iv. (INCOMPLETE) Consultant shall manage the Project tasks as provided in this Exhibit in order to complete the design work within the approved Project schedule milestone dates as provided in the Schedule of Performance.
C. Task 2 - Preliminary Design
i. (COMPLETE) Consultant shall review existing data, such as as-builts, pertaining to the Project.
ii. Survey – Consultant shall conduct a survey of the Project site as follows:
1. (COMPLETE) AREA - This Project covers the Blue Mountain Trail site in Grand Terrace, California. The mapping limits are provided in Exhibit “A-1.”
2. (COMPLETE) GROUND CONTROL - Consultant will acquire
the necessary aerial ground control. The horizontal control will be tied into the street monumentation. The vertical control will be based upon Mean Sea Level datum tied to local government benchmarks.
A total of seven (7) aerial control points will be required. See the attached imagery in Exhibit “A-1” for the control point layout.
3. (COMPLETE) AERIAL PHOTOGRAPHY - The aerial
photography will consist of one (1) flight line and four (4) exposures at an approximate scale of 1"= 300'. The aerial photography will be flown with a precision aerial mapping camera using black and white film.
4. (COMPLETE) TOPOGRAPHIC MAPPING - The topographic
mapping will be prepared at a scale of 1"= 40' showing a one (1) foot contour interval in the southwest corner of the site. The mapping for the remainder of the site will be delivered at 1"= 40' scale with a two (2) foot contour interval.
The aerial mapping will be field completed on the southwest portion of the site only, showing the utilities, sidewalks, street curb and gutters on both sides of Observation Street and the street centerline, fences, walls, trails, parking area and other planimetric details that are not visible on the aerial photography.
Delivery will include a digital black and white orthophoto in the form of a JPEG file suitable for viewing at a scale of 1"= 20'. The aerial mapping will meet or exceed National Map Accuracy Standards for a 1"= 40' scale map with a one (1) foot contour interval.
5. SURVEY DELIVERY ITEMS
(COMPLETE) Item 1: One (1) set of uncontrolled pdf files of the aerial photography scans.
(COMPLETE) Item 2: One (1) set of control data and field completion used on the Project.
(COMPLETE) Item 3: One (1) set of digital (AutoCAD) data of the above described DTM and mapping data
(INCOMPLETE) Item 4: One (1) black and white digital
orthophoto in the form of a JPEG file. Consultant shall carry out the following tasks in creating such orthophoto:
(i) (COMPLETE) Photo document existing conditions
(ii) (COMPLETE) Conduct Site Analysis to identify
opportunities and constraints of the Project site.
(iii) (COMPLETE) Obtain and review preliminary
utility information and prepare and send utility notifications to all utility companies known to operate within the Project area to identify the type and locations of utilities for the Project.
(iv) (COMPLETE) Develop provisions to
accommodate existing and new utility facilities (e.g.,
maintained in place, removed, adjusted, abandoned, or
installed).
(v) (COMPLETE) Effectively identify utilities
locations and resolve conflicts on proposed plans to keep Project on schedule. Consultant shall prepare Utility
Conflict Sheet to summarize conflict and resolution.
(vi) (COMPLETE) Notify responsible utility owner of
necessary facility relocation or adjustment.
(vii) (COMPLETE) Ensure significant utility impacts
shall be reflected in the Project schedule and coordinated to not conflict with the design work.
(viii) (COMPLETE) Prepare a Geotechnical Report as
follows:
- Review soils, geologic data and maps
- Visit park site to observe existing conditions and
Hand Auger and collect soil samples as well as
perform infiltration test.
- Field engineer to log excavation and collect soil
samples
- Laboratory testing of select soils samples for
moisture density, sieve analysis, sand equivalents
and corrosion potential (pH, resistivity, chlorides
and water soluble sulfates).
(ix) (COMPLETE) Conduct first community
presentation to introduce Project scope, schedule and
process. Listen to concerns and comments the public has related to the Project. City provided design concepts as well as Google Earth images and site photos will be used to
describe the Project.
(x) (COMPLETE) Prepare Conceptual Design plan
utilizing the formal survey as the base sheet. The provided preliminary design shall be the basis of the conceptual design. Verify the preliminary plan horizontal and vertical control is achievable. Provide design alternates as needed to site the proposed required amenities is relationship with existing grades and ADA accessible code requirements.
(xi) (INCOMPLETE) Obtain restroom design
proposals from (3) manufacturers for review and
comparison.
(xii) (INCOMPLETE) Obtain bridge design proposals
from (2) manufacturers for review and comparison.
(xiii) (INCOMPLETE) Obtain manufacturer options for
solar lighting, hydration station, fencing, tables and chairs, parking lot materials, trail materials, landscape plantings and irrigation equipment/materials.
(xiv) (INCOMPLETE) Prepare preliminary construction
cost estimate.
(xv) (INCOMPLETE) Meet with City Staff to review
design concept and estimate. Revise as needed based on
input received.
(xvi) (INCOMPLETE) Provide design boards of
concepts and amenities to present to the community at
second meeting for review and comment. Include digital
presentation of concepts and renderings.
(xvii) (INCOMPLETE) From input received, revise
design concepts as necessary.
(xviii) (INCOMPLETE) Provide design boards of revised
concepts to City Staff for review and comment.
(xvix) (INCOMPLETE) Prepare final design concepts
and cost estimate intended to be presented to City Council. (xx) (INCOMPLETE) Attend City Council Meeting to
present the revised/selected concept/estimate to finalize aesthetic design choice and receive approval.
(xxi) (INCOMPLETE) Conduct a Soils/Geotechnical
Report and Infiltration test
(xxii) (INCOMPLETE) Review existing Project site
power plans and determine if existing power is available to power splash pad system.
iii. (INCOMPLETE) Task 2.A - Consultant shall develop design alternates/concepts for a trail marker at the terminus of the upper trail located at the peak. Consultant shall work with City Staff, Community Members and Council to identify commonalities in interests for the feature.
Consultant shall prepare design exhibits featuring source images of inspiration, form features and scale. Such exhibits shall be combination of 2 dimensional plan and elevation views as well as 3D sketch up model. iv. (COMPLETE) Consultant Deliverables: Preliminary Design Concept Drawings and estimate (AutoCAD version compatible with City and PDF).
Renderings of the design concept and amenities exhibit featuring photos of proposed materials (PowerPoint and Photoshop). Site Survey (AutoCAD version compatible with City and PDF). Preliminary Grading Plan (AutoCAD version compatible with City and PDF). Preliminary Wet/Dry Utility Plan (AutoCAD version compatible with City and PDF).
Soils/Geotechnical and Infiltration Test Report. Supporting Documentation D. (INCOMPLETE) Task 3 - Construction Documentation
Consultant shall develop and assemble Contract Construction Bid Documents ("Bid Documents") for advertisement and bidding the Project for construction consistent with applicable law and regulations, including local and California law and regulations. Plans shall depict all property/right-of-way lines and all existing improvements such as, but not limited to, curb and gutter, curb returns, cross gutters, sidewalk, access, and utilities as shown the existing topographic map. Any removals and possible relocations shall be shown on a demolition plan. The Bid Documents shall in include all necessary Civil, Landscaping and Structural (Solar Light Pole Footings only) Construction Plans and supporting documentation for a complete biddable set. Furthermore, Consultant shall provide Technical Specifications and Cost Estimates associated with the design plans. All Bid Documents shall be prepared and stamped by a California licensed Landscape Architect and Professional Engineer with the appropriate license per each disciplines of work. The design shall comply with all latest applicable codes, guidelines, and standards with respect to each design category (i.e. mechanical, plumbing, structural, civil, building, etc.). Plans shall be drawn at 1"=20' and include the following:
1. Title/Index Sheet;
2. Demolition/Protection Plan;
3. Erosion Control Plan;
4. Grading and Drainage Plans, Calculations, Details and Notes;
5. Construction Plans, Details, Notes (Including Horizontal Control);
6. WQMP – Water Quality Management Plan (SWPPP/NOI is
excluded as not required, project site is less than 1 acre);
7. Wet Utility Plan, Details and Notes;
8. Photometric Plan;
9. Landscape Plan, Details and Notes;
10. Irrigation Plans, Calculations Details and Notes;
11. Technical Specifications – City shall prepare the boiler plate specifications; and
12. Probable Construction Cost Estimates with back-up/support information on quantities and unit prices.
ii. The Plan format, standard construction notes, and sheet borders shall be commensurate with City standards. Deliverables include:
1. 50%, 90% Full Set Construction Set Drawings (AutoCAD version compatible with City and PDF);
2. 50%, 90% Contract Technical Specifications (Word and PDF);
3. 50%, 90% Engineers Estimate (Excel and PDF); and
4. Supporting Design Documentation/Calculations (Word, Excel, and PDF). Deliverables include:
a. Construction Drawings and estimate (AutoCAD version
compatible with City and digital PDF); and
b. Meeting Minutes and Supporting Documentation.
iii. Final Design Deliverable Format from Plan Check Review Comment for Final Bid Package Submittal (100% PS&E):
1. Full Construction Bid Ready Plans (1 PDF file for City duplication and printing and Autocad files)
2. Specifications (PDF and DOC file formats)
3. Project Cost Estimate (Excel file, and PDF)
4. All Supporting Documents (PDF and/or DOC)
E. (INCOMPLETE) Task 4 – Bidding:
i. Consultant team shall be available throughout the advertisement and bidding period to provide technical assistance to the City. This requires assistance with bidder's inquiries, preparation of addenda, and attendance at the pre-bid field meeting. Bidding procedures shall be the responsibility of the City. Deliverables include:
1. Pre-bid meeting notes; and
2. Comments on requests for information, plan/specification revisions, and addendums to bid.
F. (INCOMPLETE) Task 5 – Construction Support :
i. Prepare the Pre-Construction meeting agenda for the City’s review. The following items will be reviewed at the Pre-Construction meeting:
1. Plans, Specifications and Inspection Process;
2. Submittals and the approval process;
3. Agreed communication;
4. Contract Change Order (CCO) process; and
5. Final project walkthrough, punch list items.
ii. Conduct preconstruction meeting with City and Contractor. Prepare meeting minutes and distribute to all parties.
iii. Coordinate with City project manager, City staff and inspector as necessary during construction.
iv. Review contractor prepared construction schedule and verify adherence during the life of the project.
v. Update schedule and progress verification as field operations continue and change original schedule.
vi. Review and approve product submittals and shop drawings in accordance with construction documents.
vii. Attend on-site project meetings to review work of the contractor. Prepare written reports.
viii. Coordinate with all Parties by telephone, fax and e-mail as necessary. ix. Respond to contractor’s Request for Information (RFI’s) and other questions during project construction.
x. Conduct punch walk and identify items of correction. xi. Conduct final inspection for project sign off and obtain contractor provided as builts.
G. (INCOMPLETE) Labor Compliance:
i. The Consultant will apply their extensive working knowledge of CDBGfunded and Federal, and Section 3 compliance regulations to ensure compliance with federal, state, and local labor compliance requirements. ii. HAI labor compliance consulting services tasks will include the following:
1. Provide review and compliance with the following laws and regulations:
a. California Labor Code Sections 1774-1775, 1776, & 1777.5; b. Senate Bill 854 (SB 854) and Assembly Bill 219 (AB 219) Requirements;
c. Federal Davis Bacon (DOL) and Department of Industrial Relations (DIR);
d. All documents mandated by State of California, Federal Department of Labor, City of Los Alamitos and by the
contractor;
e. Section 3 monitoring completing the Summary Report
(60002 form);
f. HUD reporting (2516 form) Contractor Subcontractor
Activity Report; and
g. HUD 5.7 Enforcement Report.
iii. Schedule and conduct pre-construction meeting with contractor and subcontractors to review labor compliance regulations (EEO, Section 3, Prevailing Wage, and other applicable labor compliance information).
Prepare necessary documentation to be distributed at such meetings. iv. Monitor prime and subcontractor(s) payment of applicable prevailing wage rates, payment of training funds, and ensure employment of properly registered apprentices and that appropriate apprenticeship ratio is being met. v. Monitor construction sites by performing on-site review of postings (to ensure compliance with EEO posting requirements) and interviews for verification of proper payments of prevailing wage rates and work classification.
vi. Provide discrepancy notices no less than (1) once per month on all items missing, incomplete, or incorrect. Follow-up to ensure compliance. vii. Provide a recommendation to withhold contract payments and imposing penalties for noncompliance, as applicable.
viii. Identify potential labor compliance claim issues before they arise and investigate probable violation and complaints of underpayments. Assist prime and subcontractor(s) with the completion of required labor compliance documentation and wage determination as necessary or required.
ix. Assist with Public Works/Prevailing Wage questions, issues, and research as needed or required.
H. (INCOMPLETE) FINAL DESIGN DELIVERABLE FORMAT
Final Bid Package Submittal (100% PS&E):
i. Full Construction Bid Ready Plans (1 PDF file for City duplication and printing and Autocad files)
ii. Specifications (PDf and DOC file formats)
iii. Project Cost Estimate (Excel file, and PDF)
iv. All Supporting Documents(PDF and/or DOC)
I. City Responsibilities
i. The City shall provide the following to assist the Consultant with the Project:
ii. Existing Utility as-builts for the adjacent streets and utilities. iii. Sample contract specifications package (boilerplate) iv. CEQA Environmental Document
v. Pay for all printing, mailing, overnight transmittal at cost. vi. In addition, the City shall be responsible for advertising the Project, holding a pre bid meeting, receiving contractors' bids, printing plans and specs for bidding purposes, conducting the bid opening, preparing the Notice of Award, scheduling and conducting the pre-construction meeting, preparing and distributing the pre- construction meeting agenda and minutes, and construction management and oversight.
vii. The City shall provide all existing documentation it has on file for the Project that may include existing utility locations and depths, survey/boundary information, copies of easement documentation, list of agencies having jurisdiction over the Project, and the contact person for the agency, street improvement plans and storm drain plans. Consultant shall make a good-faith effort to verify the accuracy of such information and utilize it in the preparation of the final working drawings and specifications.
Consultant acknowledges and agrees that the City has completed this requirement.
II. As part of the Services, Consultant will prepare and deliver the following tangible work products to the City:
A. In addition to the tangible work products provided above, Consultant shall provide such other tangible work products as may be required by the City from time to time.
III. In addition to the requirements of Section 6.2, during performance of the Services, Consultant will keep the City appraised of the status of performance by delivering the following status reports:
A. In addition to the status reports provided above, Consultant shall provide such other status reports as may be required by the City from time to time.
IV. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.
V. All of the above described documents and additional reports, plans, and specifications will be organized in accordance with the City requirements. They will be boxed in storage boxes and submitted to the City as permanent City records.
VI. Consultant will utilize the following personnel to accomplish the Services:
A. Charles E. Foley, Vice President & Director of Projects
EXHIBIT C-1
PROFESSIONAL FEE SCHEDULE
The professional fees for services stated include all costs for general overhead, profit, and telephone, clerical, travel and incidental expenses not separately requested by the City.
01247.0006/1062801.1
Professional Fees
Professional fees for services stated are based upon the scope of work and include all costs for general overhead, profit, telephone, clerical, travel and incidental expenses. Fees shall be valid for the life of the contract.
Reimbursement Expenses
All printing, blueprinting, computer plotting, computer scans, photographic reproductions and special overnight deliveries, other than US Postal Service, requested by the City shall be paid as a direct reimbursable expense plus 10% to Hirsch & Associates.
HAI
Principal Landscape Architect $185
Project Manager $105
Designer $95
Construction Meetings $750/ea
Reproduction / Printing Cost Plus 10%
Blue Peak
Civil Engineer $225/hr
Design Engineer $190/hr
Drafter $90/hr
Landmark
Structural Engineer $235/hr
GCap
Labor Compliance Manager $165
Labor Compliance Supervisor $125
Analyst $110
AGENDA REPORT
MEETING DATE: May 13, 2025
TITLE: Award Contract for NPDES Support Services
PRESENTED BY: Shanita Tillman, Sr. Management Analyst
RECOMMENDATION: Award the contract for NPDES Support Services to Lynn Merrill & Associates, Inc. for a five-year term in the annual amount of $8,000, and authorize the City Manager to execute the agreement, subject to approval as to form by the City Attorney.
2030 VISION STATEMENT:
This staff report supports City Council Goal #1: Ensuring Our Fiscal Viability and Goal #2: Maintain Public Safety by ensuring ongoing compliance with mandated stormwater regulations and water quality management practices through the cost-effective use of contracted services.
BACKGROUND:
The City of Grand Terrace utilizes contracted services to support compliance with the National Pollutant Discharge Elimination System (NPDES) and National Discharge Elimination Permit requirements. On September 27, 2022, the City entered into a one-year agreement not to exceed $25,000 with Lynn Merrill and Associates, Inc. to provide these services.
On August 15, 2023, the City received a follow-up proposal from Lynn Merrill and Associates, Inc. for continued NPDES support services, with costs not to exceed $8,000 annually. The scope of services also included assistance in reviewing and approving Water Quality Management Plans (WQMPs) — supporting developers through the preliminary, redline, and final approval process at the City's direction.
DISCUSSION:
To ensure competitive pricing and long-term service continuity, staff issued a Request for Proposals (RFP) for NPDES support services on March 28, 2025, with the bid period closing on April 17, 2025.
Two proposals were received:
• Lynn Merrill & Associates, Inc. – $8,000 per year (5-year term) • CASC Engineering and Consulting, Inc. – $14,825 per year (5-year term) Lynn Merrill & Associates, Inc. submitted the lowest responsive and responsible proposal and is the City’s current provider, with demonstrated knowledge of the City’s NPDES requirements and WQMP processing procedures. Continuing with the same firm also reduces administrative burden and ensures continuity in service delivery.
The existing contract expires on June 30, 2025, and the new five-year contract will commence on July 1, 2025, ensuring a seamless transition between agreements.
ENVIRONMENTAL IMPACT:
The proposed action is not a project under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15378(b)(5), as it involves administrative activities of government that do not result in a direct or reasonably foreseeable physical change in the environment. Therefore, no environmental review is required.
FISCAL IMPACT:
NPDES support services will be funded through Account No. 10-625-255-000 and included in each year's budget. This contract award reflects the lowest bid received and ensures ongoing compliance with regulatory requirements at a lower annual cost compared to alternative proposals.
CITY OF GRAND TERRACE
BID RESULTS SUMMARY & NOTICE OF AWARD
Bid Number: NSS2025
Title: NPDES Support Services
Bid Close Date: April 17, 2025, 12:00 PM
Submission Platforms: Email and Public Purchase
Total Proposals Received: 2
Bid Summary
Vendor Annual Cost
Lynn Merrill & Associates, Inc. (Awarded) $8,000
CASC Engineering and Consulting, Inc. $14,825
Notice of Award
Following review of all proposals, the City of Grand Terrace intends to award the contract for NPDES Support Services to Lynn Merrill & Associates, Inc., the lowest responsive and responsible bidder, at an annual cost of $8,000.
Final award is contingent upon execution of the agreement and any remaining administrative requirements.
01247.0001 2000852.1 4/28/2025 1
AGREEMENT FOR CONTRACT SERVICES BY AND BETWEEN THE
CITY OF GRAND TERRACE AND LYNN MERRILL AND ASSOCIATES,
INC.
FOR
NPDES SUPPORT SERVICES
This “AGREEMENT FOR CONTRACT SERVICES BY AND BETWEEN THE CITY OF GRAND TERRACE AND LYNN MERRILL AND ASSOCIATES, INC. FOR NPDES SUPPORT SERVICES” (herein “Agreement”) is made and entered into this 1st day of July 2025, by and between the CITY OF GRAND TERRACE, a California municipal corporation (“City”) and LYNN MERRILL AND ASSOCIATES, INC., a California stock corporation (herein “Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.” NOW, THEREFORE, the Parties hereto agree as follows:
1. SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all of the terms and conditions of this Agreement, Consultant shall perform the work or services set forth in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by reference. Consultant warrants that it has the experience and ability to perform all work and services required hereunder and that it shall diligently perform such work and services in a professional and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Consultant shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by the Agreement.
1.4 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
2. COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference, but not exceeding the maximum contract amount of Forty Thousand Dollars and Zero Cents ($40,000.00) (“Contract Sum”).
2.2 Invoices. Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement,
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Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, City will use its best efforts to cause Consultant to be paid within forty five (45) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission.
Review and payment by the City of any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.3 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum but not exceeding a total contract amount of Five Thousand Dollars ($5,000) or in the time to perform of up to ninety (90) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding thirty (30) days cumulatively.
3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay
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notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit “D”).
4. COORDINATION OF WORK
4.1 Representative of Consultant. Lynn Merrill is hereby designated as being the representative of Consultant authorized to act on its behalf with respect to the work and services specified herein and make all decisions in connection therewith. All personnel of Consultant and any authorized agents shall be under the exclusive direction of the representative of Consultant.
Consultant shall utilize only competent personnel to perform services pursuant to this Agreement.
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, and shall keep City informed of any changes.
4.2 Contract Officer. The City Manager, or such person as may be designated by the City Manager, is hereby designated as being the representative the City authorized to act in its behalf with respect to the work and services specified herein and to make all decisions in connection therewith (“Contract Officer”).
4.3 Prohibition Against Subcontracting or Assignment. Consultant shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Any such prohibited assignment or transfer shall be void.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth. Consultant shall perform all services required herein as an independent contractor of City with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City, or that it is a member of a joint enterprise with City.
5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages. Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City:
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1) Commercial General Liability Insurance (Occurrence
Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, either the general aggregate limit shall apply separately to this contract/location, or the general aggregate limit shall be twice the occurrence limit. 2) Worker’s Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement.
3) Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than either (i) bodily injury liability limits of $100,000 per person and $300,000 per occurrence and property damage liability limits of $150,000 per occurrence or (ii) combined single limit liability of $1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars, and any other automobile.
4) Professional Liability. Professional liability insurance appropriate to the Consultant’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Consultant’s services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of the City submit written evidence of this continuous coverage. 5) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”. 6) Subcontractors. Consultant shall include all
subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
5.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name City, elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or officers, employees or agents may apply in excess of, and not contribute with Consultant’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against City, officers, employees and agents and their respective insurers.
The insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any
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party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section
5.1 to the Contract Officer. No work or services under this Agreement shall commence until Consultant has provided City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by City. City reserves the right to inspect complete, certified copies of and endorsement to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the City’s Risk Manager or other designee of the City due to unique circumstances.
5.3 Indemnification. To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
a. Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorney’s fees incurred in connection therewith;
b. Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold City, its officers, agents, and employees harmless therefrom;
c. In the event that City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to City, its officers, agents or employees, any and all costs and expenses incurred by City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorney’s fees.
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Consultant shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services and shall keep such records for a period of three (3) years following completion of the services hereunder. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records.
6.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement or as the Contract Officer shall require.
6.3 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than the City without prior written authorization from the Contract Officer.
(b) Consultant shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
(c) If Consultant provides any information or work product in violation of this Agreement, then the City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
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(d) Consultant shall promptly notify the City should Consultant be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding.
Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant.
6.4 Ownership of Documents. All studies, surveys, data, notes, computer files, reports, records, drawings, specifications, maps, designs, photographs, documents and other materials (the “documents and materials”) prepared by Consultant in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by the City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Moreover, Consultant with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for City.
7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.
7.2 Disputes; Default. In the event that Consultant is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. If Consultant does not cure the default, City may take necessary steps to terminate this Agreement under this Article.
7.3 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue any legal action under this Agreement.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
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different times, of any other rights or remedies for the same default or any other default by the other Party.
7.4 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. City reserves the right to terminate this Contract at any time, with or without cause, upon written notice to Consultant. In addition, Consultant may terminate this Contract at any time for cause, upon sixty (60) days’ advance written notice to City. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where Consultant has initiated termination, Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer. In the event Consultant has initiated termination, Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder, but not exceeding the compensation provided therefore in the Schedule of Compensation Exhibit “C”.
In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
7.5 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed City as previously stated.
8. MISCELLANEOUS
8.1 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class
8.2 Non-liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.3 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Grand Terrace, 22795 Barton Rd, Grand Terrace, CA 92313, and in the case of
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Consultant, to the person(s) at the address designated on the execution page of this Agreement.
Either party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
8.4 Integration; Amendment. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing.
8.5 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
8.6 Waiver. No delay or omission in the exercise of any right or remedy by non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
A Party’s consent to or approval of any act by the other Party requiring the Party’s consent or approval shall not be deemed to waive or render unnecessary the other Party’s consent to or approval of any subsequent act. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
8.7 Attorney’s Fees. If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which any be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees, whether or not the matter proceeds to judgment.
8.8 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
8.9 Counterparts and Electronic Signatures.
This Agreement may be executed in two or more counterparts, each of which when so executed shall be deemed to be an original, and all of which when taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be one of
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the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transactions Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
8.10 Warranty & Representation of Non-Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Consultant warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
Consultant’s Authorized Initials _______
8.11 Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
[Signatures on the following page.]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY:
City of Grand Terrace, a municipal corporation
_____________________________________
_
Konrad Bolowich, City Manager
ATTEST:
_____________________________________
_
Daysi Alcocer, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
_____________________________________
_
Adrian R. Guerra, City Attorney
CONSULTANT:
LYNN MERRILL AND ASSOCIATED,
INC., a California stock corporation
_____________________________________
_
By:
__________________________________
Name: Lynn Merrill
Title: President
By: _+__
Name:
Title:
Address: 33724 Fairview Drive
Redlands, California 92399
Tel: 909-217-1201
Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
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MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
01247.0001 2000852.1 4/28/2025
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On __________, 2025 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01247.0001 2000852.1 4/28/2025
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On __________, 2025 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01006-0001/301444.1
A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following Services:
A. Preparation of Annual Report - Consultant shall, using data from the CloudCompli and City information, prepare all necessary forms and submittals, including certification letters necessary to complete and submit to the San Bernardino County ("County") NPDES Program by the statutory and established deadlines.
B. Attendance at Monthly General Management Meetings - Under the terms of the existing NPDES Permit, the City is required to attend 11 of the scheduled General Management Meetings. Consultant's Services shall include, but not be limited to, attending the meetings, reviewing budget and program elements, and making recommendations for action items. This includes, but is not limited to, voting on routine matters on behalf of and at the direction (where applicable) of the City that may come before the General Management Meeting. In addition, Consultant shall represent the City at all of the County's Fiscal subcommittee meetings and are currently co-chair of the Fiscal subcommittee.
C. NPDES Permit Renewal - Consultant's Services shall include, but not be limited to, attending special Permittee meetings held to review and discuss the elements of the proposed permit, reviewing and making proposed language changes to the Regional Board, attendance at workshops and Regional Board hearings, and other activities in support of the permit renewal. Consultant's team utilized for these Services shall include, but not be limited to, Consultant's subconsultant CG Resource Management and Engineering, Inc. and it's principal Cynthia Gabaldon.
Any change to this subconsultant shall require the written approval of the City.
D. Commercial and Industrial Inspection Programs - Consultant shall conduct the City's NPDES inspection program on both Commercial and Industrial sites that are subject to the requirements of the NPDES permit. This shall include, but not be limited to, reviewing the City's business license list for new businesses as well as past inspections, and conducting inspections of high, medium and low priority businesses as set forth in the NPDES permit (as applicable). Consultant's inspections provided hereunder will typically be no more than 50 inspections per year; however, the number varies due to the number of medium and low priority businesses that are only required to be inspected every two or five years respectively. High priority businesses are required to be inspected annually, and normally includes full-service restaurants and auto service businesses, as well as
01247.0001 2000852.1 4/28/2025
any industrial businesses that are subject to the Industrial General Permit or have the potential for release of pollutants to the MS4 system.
E. Inspection of Post Construction BMPS - Under the current NPDES permit, the City is required to inspect the Post Construction Best Management Practices ("BMPs") that are set forth under within each of the applicable Water Quality Management Plans ("WQMP") that have been previously approved by the City.
F. WQMP - Consultant shall assist the City in the review and approval process for Water Quality Management, including working with the developers on submission of a Preliminary WQMP, through redline process to final acceptance of the WQMP.
Services hereunder shall include, but not be limited to, conducting any site inspections necessary to ensure that Best Management Practices and site configuration complies with the requirements set forth in the WQMP. Typically, Preliminary WQMP reviews and redline are a single fixed price, while Final WQMPs shall be priced based on the type of project as provided in Exhibits "C" and "C-1". WQMP review and approval includes three site inspections during the course of actual construction to ensure that the Developer is implementing the requirements of the WQMP on-site, with a final approval upon completion of each development project. Additional inspections, if required, are at the fully burdened hourly rate shown below for the Senior Consultant / Principal Engineer.
II. As part of the Services, Consultant will prepare and deliver the such tangible work products to City as may be requested by City from time to time.
IV. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
V. Consultant will utilize the following personnel to accomplish the Services:
A. Lynn Merrill, Principal
B. Paul Merrill, Senior Supervising Inspector
C. Abriana Marshal, Administrative Manager
D. Cynthia Gabaldon, Senior Consultant – PE (CG Resource Management and Engineering, Inc.)
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EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. Section 3.2 (Schedule of Performance) is hereby amended as follows (strikethrough represents deleted language while bold italics represents added language):
“Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding thirty (30) days cumulatively. City, at its sole discretion, may grant one (1) additional five (5) year extension of the Agreement term upon mutual written agreement of both Parties, subject to the same terms and conditions unless otherwise amended in writing.”
II. Section 3.4 (Term) is hereby amended as follows (strikethrough represents deleted language while bold italics represents added language):
“Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year five (5) years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit “D”).”
C-1
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks at the following rates:
A. For Sections I(A) through I(E) of Exhibit “A”, total compensation shall not exceed $8,000 per year.
(i) Consultant shall be compensated for Services performed pursuant to Sections I(A) through I(C) of Exhibit “A” pursuant to the rates provided in Table 1 in Exhibit “C-1”.
(ii) Consultant shall be compensated for Services performed pursuant to Section I(D) of Exhibit “A” pursuant to the rates provided in Table 2 of Exhibit “C-1”.
(iii) Consultant shall be compensated for Services performed pursuant to Section I(E) of Exhibit “A” pursuant to the rates provided in Tables 1 and 2 of Exhibit “C-1”.
B. For WQMP inspection services under Sections I(F) of Exhibit “A”, Consultant’s total compensation shall not exceed $10,000 and shall be at the rates provided in Tables 3 and 4 of Exhibit “C-1”.
II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
III. The City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.
IV. The total compensation for the Services shall not exceed $8,000 per year for a total compensation of $40,000 as provided in Section 2.1 of this Agreement.
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EXHIBIT “C-1”
CONSULTANT’S RATES
Table 1
Table 2
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Table 3
Table 4
D-1
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EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely in accordance with the schedule to be developed by Consultant and subject to the written approval of the Contract Officer and the City Attorney’s office.
II. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2.
III. City, in its sole discretion, may grant one (1) additional five (5) year extension of the term of this Agreement in writing.
AGENDA REPORT
MEETING DATE: May 13, 2025
TITLE: Professional Services Agreement Amendment No. 1 Between the City of Grand Terrace and Lance, Soll & Lunghard, LLP for Financial Auditing Services
PRESENTED BY: Christine Clayton, Finance Director
RECOMMENDATION: 1. Approve the Professional Services Agreement Amendment No. 1 with Lance, Soll & Lunghard, LLP for Financial Auditing Services for a term of two (2) years; and
2. Authorize the Mayor to execute the Agreement subject to the City Attorney's approval as to form.
2030 VISION STATEMENT:
This staff report supports City Council Goal #1, “Ensuring Our Fiscal Viability” through the continuous monitoring of revenue receipts and expenditure disbursements against approved budget appropriations.
BACKGROUND:
Lance, Soll & Lunghard, LLP (LSL) is a regional public accounting firm based in Brea, with other offices in the Temecula Valley, Los Angeles County and the Silicon Valley. LSL has been in business for 85 years and has a strong focus in the public sector.
The City awarded its financial auditing services agreement to LSL in August 2014 (Attachment A) for its financial auditing services and financial statement preparation. Amendment #1 (Attachment B) was approved in October 2018. This agreement was extended in 2018 for another 2 years. The original agreement was amended and restated in 2021 (Attachment C) and extended for another 2 years in 2023.
DISCUSSION:
Changing auditors is a significant undertaking and impacts City staff as new auditors must get oriented with the new organization, learn its financial policies/practices, evaluate its internal controls, and understand its financial issues. It could also impact the conduct and the delivery of the City’s mandated audits. Therefore, changing auditors is generally not recommended to be done frequently.
Since the award of the contract in 2014, several additional reporting requirements have been added:
1. Grand Terrace Housing Successor Agency Annual Financial Reports; and
2. Governmental Accounting Standards Board (GASB) 68, which required different accounting and financial reporting for pensions; and
3. Governmental Accounting Standards Board (GASB) 75, which replaced Statements Nos. 45, 57 and 74; and
4. Governmental Accounting Standards Board (GASB) 87 and 96, which standardized how
organizations report long-term commitments; and
5. Governmental Accounting Standards Board (GASB) 103, which changed the Financial Reporting Model.
Due to the increased hours estimated for the additional reporting requirements in addition to rising labor costs, the fee structure from LSL will need to be increased to account for those increased costs.
LSL has extended a 20% customer loyalty discount from their standard pricing structure to the City to assist in combating these rising costs.
Therefore, staff is recommending that City Council approve the Professional Services Agreement Amendment No. 1 with Lance, Soll & Lunghard, LLP for Financial Auditing Services for a term of two (2) years (Attachment D), providing a two-year extension and two options to extend the Agreement of one year each, authorizing the City Manager to execute each option to extend, and increasing the annual compensation to LSL provided in Exhibit C of the attached proposed amendment; and, further, authorize the Mayor to execute the proposed Agreement subject to approval by the City Attorney.
ENVIRONMENTAL IMPACT:
N/A
FISCAL IMPACT:
Adequate funding is included in the FY 2025-26 Adopted Budget for financial auditing services and the expenditure will be coded to account 10-140-250-000-000. Funding for subsequent years’ audits will be addressed through the City’s annual budget process.
AGREEMENT FOR PROFESSIONAL SERVICES
Financial Auditing Services
THIS AGREEMENT (" Agreenenf')` is made as of this 2e day of August, 2014 by and between the City of Grand Terrace (" City") , and Lance, Sol) & Lunghard, LLP Auditor")
AUDITOR' S SERVICES` Auditor agrees to perform during the term of this Agreement, the tasks, obligations, and services set, forth in the Request for Proposals ( RFP) document dated June 3, 2014, attached to and incorporated into this Agreement as Exhibit "A" and Auditor's 'Proposal in response to said RFP dated July 7, 2014, attached to and incorporated into this Agreement as Exhibit "B"
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2 TERM OF AGREEMENT The term of this Agreement shall, be from the date executed and shall end with the completion of all deliverables related to the audit for Fiscal Year 2617- 18, unless extended by a supplemental agreement d 3 FAMILIARITY WITH WORK By execution of this Agreement, Auditor warrants that
1) It has thoroughly investigated and considered the work to be performed, based on all available information
2) It carefully considered how the work should be performed, and 3) It fully understands the difficulties and restrictions attending the performance of the work under this Agreement,
4) It has the professional and technical competency to perform the work and the production capacity to complete the work in a timely manner with respect to the schedule included in the scope of services 4 PAYMENT FOR SERVICES City shall pay for the services performed by d Auditor pursuant to the terms of this Agreement, the compensation set forth in a the " Audit Work Cost Proposal" attached to and incorporated into this Agreement a as Exhibit " C" The fees for services shall not exceed the amounts shown in Exhibit " C" for each fiscal year Invoices shall be submitted for work completed on a progress billing basis, to the City' s Finance Director Upon verification that d the invoice accurately reflects the work performed, the City shall pay Auditor within thirty ( 36) days therefrom o
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5 TIME FOR PERFORMANCE Auditor shall not perform any work under this c Agreement until ( a) Auditor furnishes proof of insurance as required under a Paragraph " 8" of this Agreement All services required by Auditor under this =
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11 ASSIGNMENT This Agreement^ is for the specific services with Auditor as set forth herein Any attempt by Auditor to assign the benefits or burdens of this Agreement without written approval of City isprohibited and shall be null and void, except that Auditor may assign payments due under ,this Agreement to a financial institution
12 STANDARD Auditor agrees that the services, to be rendered pursuant to this Agreement shall be performed In= accordance with then standards customarily provided by an experienced and competent professional organization rendering the same or similar services Auditor shall re -perform any of said services, which are not in conformity with standards as determined by the City 13 CONFIDENTIALITY Employees of Auditor in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City Auditor covenants - that -all data, documents, discussion, or other information developed or received by Auditor or provided for performance of this Agreement are deemed ` confidential and shall not be disclosed by Auditor without written authorization by City City shall grant such d authorization if disclosure s ,required by law All City data shall be returned to City upon the termination of this Agreement Auditor's ,covenant `under -this cn Section shall survive the termination of this Agreement co J
14 RECORDS AND INSPECTIONS Auditor steall maintain full and accurate this Agreement
I
a
records with respect to all services and matters covered under City shall have free access at all reasonable times to such records, and the right n to examine and audit the same and to make transcripts therefrom, and to inspect all program data, documents, proceedings and activities Auditor shall maintain an up-to-date list of key personnel and telephone numbers for emergency a' contact after normal business hours
15 OWNERSHIP OF AUDITOR' S WORK PRODUCT Reports prepared by the cc Auditor on behalf of the City ( such as the Comprehensive Annual Financial Li Report, State Controllers Report, Street Report and Single Audit Report) shall be and remain the property of the City Auditors work papers and other data E and analysis developed and utilized by the Auditor in the performance of its duties under this Agreement shall be and remain the property` of the Auditor a 16 NOTICES All notices given or required to be given pursuant to this Agreement N
shall be in writing and may be given by personal delivery or' by mail Notice sent by mail shall be addressed as follows.
o
7v
p
City Finance Director U)
City of Grand Terrace 4
22795 Barton Road a
Grand Terrace, CA 92313
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22 TRAVEL/ EXPENSES All travel expenses and other out-of-pocket expenses incurred by Auditor' s staff in the execution of this Agreement are incorporated in the Audit Work Cost Proposal ( Exhibit " C") and will not be separately charged to City Any other expenses for which Auditor is, seeking reimbursement from the City must be pre- authonzed by the City' s Finance Director 23 CONFLICT OF INTEREST Auditor agrees that any conflict or potential conflict of interest shall be fully disclosed prior to execution of contract and Auditor, shall comply with all applicable federal, state and county laws and regulations governing conflict of interest
24 ECONOMIC INTEREST STATEMENT Auditor hereby acknowledges that N pursuant to Government Code Section 87300 and the Conflict of Interest Code c adopted by City hereunder, Auditor is designated in said Conflict of Interest Code a` and is therefore required to file an Economic Interest Statement (Form 700) with the City Clerk, for each employee providing advise under this Agreement, prior to co the commencement of work =
25 POLITICAL ACTIVITY/ LOBBYING CERTIFICATION Auditor may not conduct any activity, including any payment to any person, officer, or employee of any governmental agency or body or member of Congress in connection with the awarding of any federal contract, grant, loan; intended to influence legislation, administrative rulemaking or the election of candidates for public office during time compensated under the representation that such activity is being performed as a part of this Agreement
26 NON- DISCRIMINATION In the performance of this Agreement, Auditor shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age physical or mental handicap, medical condition, or sexual orientation Auditor will take affirmative action to ensure, that subcontfactors and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, of sexual orientation
27 AUDIT OR EXAMINATION Auditor shall keep all records of compensation received from City and make them accessible for audit or examination for a period of three years after final payments are issued and other pending matters 28 MODIFICATION OF AGREEMENT This Agreement may not be modified, nor may any of the terms, provisions or conditions be modified or waived or otherwise affected, except by a written amendment signed by all parties 29 WAIVER If at any time one party shall waive any term, provision or condition of this Agreement, either before or after any breach thereof, no party shall E w- ems
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J .
i ) to the foregoing which are beyond the control of the party from whom the affected performance was due
37 INTEGRATED AGREEMENT This Agreement, together with Exhibits " A," " B", C" and " D" supersede any and all other agreements, either oral or in writing, between the parties with respect to the subject matter herein Each party to this Agreement acknowledges that no representation by any party, which is not embodied herein, nor any other agreement, statement or promise not contained in this Agreement shall be valid and binding Any modification of the Agreement shall be effective only if it is in writing and signed by all parties Dated
Dated
APPROVED AS TO FORM
Richard L Adams 11 , City Attorney
ATTEST
CITY'
Walt Stanckiewitz
Mayor
AUDITOR"
3 By IZZ -
and K Kikuchi, CPA
Partner
Deborah Harrington, Interim City Clerk
d
E
s
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FIRST AMENDMENT
TO
AGREEMENT FOR AUDIT SERVICES
This FIRST AMENDMENT (" FIRST AMENDMENT") to the Agreement for Financial Auditing Services with Lance, Soll & Lunghard, LLP (" AGREEMENT") is entered into. by and between the CITY OF GRAND TERRACE, hereinafter referred to as the " CITY," and LANCE, SOLL & LUNGHARD, LLP, hereinafter referred to as AUDITOR," is entered into the 23rd day of October, 2018.
RECITALS
WHEREAS, the CITY entered into the AGREEMENT with AUDITOR on August 26, 2014 to perform financial auditing services for the CITY; WHEREAS, CITY and AUDITOR wish to amend the AGREEMENT in order.to extend the contract for two years..
NOW, THEREFORE, the parties agree as follows:
1. Paragraph 2 ( Term ofAgreement) of the AGREEMENT is hereby amended to read as follows:
TERM OF AGREEMENT. The term of this Agreement shall be from date executed and shall end with the completion of all deliverables related to the audit for Fiscal Year 2019- 20.
2. Paragraph 4 ( Payment for Services) of the AGREEMENT is hereby amended to read as follows:
PAYMENT FOR SERVICES. The CITY shall pay for the services performed by AUDITOR pursuant to the terms of this Agreement, the compensation set forth in the " Audit Work Cost Proposal," which contemplates the fees for the services through Fiscal Year 2017- 18, and " LSL Proposed Audit Fees," which contemplates fees for the services through Fiscal Year 2019- 20. The fees for all services shall not exceed the amounts shown in Exhibit " A" for each fiscal year as shown therein. Invoices shall be submitted for work completed on a progress billing basis to the CITY. Upon verification that the invoice accurately reflects the work performed, the CITY shall pay AUDITOR within thirty ( 30) days therefrom.
3. Exhibit A of this FIRST AMENDMENT, attached hereto and incorporated herein by this reference, - is hereby added to, and shall supplement, Exhibit A of the AGREEMENT.
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Attachment: Attachment B - Amendment #1 with LSL (Amended and Restated Professional Services Agreement with LSL for Audit Services)
4. Except as amended by this FIRST AMENDMENT, all provisions of the AGREEMENT shall remain unchanged and in full force and effect. From and after the date of this FIRST AMENDMENT, whenever the term " AGREEMENT" appears in the AGREEMENT, it shall mean the AGREEMENT, as amended by this FIRST AMENDMENT.
5. CITY and AUDITOR each ratify and reaffirm each and every one of the respective rights and obligations arising under the AGREEMENT. Each party represents and warrants to the other that there have been no written or oral modifications to the AGREEMENT other than as provided herein. Each party represents and warrants to the other that the AGREEMENT is currently an effective, valid, and binding obligation.
AUDITOR represents and warrants to CITY that, as of the date of this AMENDMENT, CITY is not in default of any material term of the AGREEMENT and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the AGREEMENT.
6. The parties hereto irrevocably stipulate and agree that they. have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this AMENDMENT.
7. The persons executing this AMENDMENT on behalf ofthe parties hereto warrant that ( i) such party is duly organized and existing, ( ii) they are duly authorized to execute and deliver this AMENDMENT on behalf of said party, ( iii) by so executing this AMENDMENT, such party is formally bound to the provisions of this AMENDMENT, and( iv) the entering into this AMENDMENT does not violate any provision of any other agreement to which said party is bound.
SIGNATURE PAGE FOLLOWS IN PAGE 31
01247. 0001/ 518310. 2 Page 2 of 4
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Attachment: Attachment B - Amendment #1 with LSL (Amended and Restated Professional Services Agreement with LSL for Audit Services)
IN WITNESS WHEREOF this FIRST AMENDMENT is signed by the parties hereto on the date first above written.
CITY OF GRAND TERRACE"
Date
c Mayor
AUDITOR"
Lance, Soll & Lunghard, LLP
Date By
Attest:
Debra Thomas, City Clerk
APPROVED AS TO FORM
Adrian R. Guerra, City Attorney
01247. 0001/ 518310. 2 Page 3 of 4
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Attachment: Attachment B - Amendment #1 with LSL (Amended and Restated Professional Services Agreement with LSL for Audit Services)
IN WITNESS WHEREOF this FIRST AMENDMENT is signed by the parties hereto on the date first above written.
CITY OF GRAND TERRACE"
Date
Darcy McNaboe. Mayor
AUDITOR"
Lanee; S611& Zunghard, LLP
DateBy
Attest:
Debra Thomas, City Clerk
APPROVED AS TO FORM
Zvi
Adrian R. Guerra, City Attorney
01247.0001/ 518310. 2 Page 3 of 4
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Attachment: Attachment B - Amendment #1 with LSL (Amended and Restated Professional Services Agreement with LSL for Audit Services)
01247.0001 2001277.2
AMENDMENT NO. 1
TO AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF GRAND TERRACE AND
LANCE, SOLL & LUNGHARD, LLP
This AMENDMENT NO. 1 TO AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF GRAND TERRACE AND LANCE, SOLL & LUNGHARD, LLP (“Amendment No. 1”) by and between the City of Grand Terrace, a California municipal corporation (“City”), and Lance, Soll & Lunghard, LLP, a limited liability partnership (“Consultant”) is effective as of the 13th day of May 2025.
RECITALS
A. On February 9, 2021, the City and Consultant entered into an Amended and Restated Agreement for Contract Services (“Agreement”) for Consultant to provide certain financial auditing services for the City, as more specified in Exhibit “A” to the Agreement for a term of four (4) fiscal years (FY 2020/2021 through FY 2023/2024), as set forth in the Schedule of Compensation in Exhibit “C,” and a total contract sum not to exceed $167,955.00. The Agreement allows for extensions by written approval, subject to the terms in Exhibit “C” and Exhibit “D.”
B. By this Amendment No. 1, dated May 13, 2025, the parties now desire to amend the existing Agreement to extend the term of the Agreement an additional two (2) fiscal years, account for a change in cost to services, and increase the total contract sum not to exceed $104,040.00 for the term extension, for a total contract sum of $271,995.00.
C. Except as amended hereby, this amendment is subject to the same terms and conditions as provided in the Agreement.
TERMS
1. Contract Amendments. The Agreement is amended as provided herein:
1.1 Section 2.1 (Contract Sum) is hereby amended in its entirety and shall now read as follows:
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Two Hundred and Seventy One Thousand, Nine-Hundred and Ninety Five Dollars and Zero Cents ($271,995.00) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.8.
1.2 Section 3.4 (Term) is hereby amended in its entirety and shall now read as follows:
Unless earlier terminated in accordance with Article 7 of this Agreement, this
01247.0001 2001277.2
Agreement shall continue in full force and effect, and shall expire on June 30, 2026.
1.3 The following table is hereby added to Section I of Exhibit “C” (Schedule of Compensation) to address services for FY 2024/25 and 2025/26:
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks at the following rates:
Tasks FY FY
2024/25 2025/26
City’s Annual Financial Audit $36,940.00 $37,680.00
Housing Successor Audit $2,840.00 $2,900.00
Single Audit $5,660.00 $5,770.00
City’s State Controller Report $3,540.00 $3,610.00
PFA State Controller Report $650.00 $660.00
Street Report $1,210.00 $1,230.00
Gann Limit AUP $670.00 $680.00
Total Annual Compensation* $51,510.00 $52,530.00
*The Total Annual Compensation includes the Single Audit Report. In the event that a Single Audit Report is not required, then this total shall be accordingly decreased. For example, if a Single Audit Report is not required for FY 2024/25, then the Total Annual Compensation relating to the financial audit of FY 2024/25 payable to Consultant is $45,850.00.
2. Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all provisions of the Agreement, as amended by Amendment No. 1, shall remain unchanged and in full force and effect. From and after the date of this Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by Amendment No. 1.
3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and Consultant each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement. Each party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided herein. Each party represents and warrants to the other that the Agreement is currently an effective, valid, and binding obligation.
Consultant represents and warrants to City that, as of the date of this Amendment No. 1, City is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement.
01247.0001 2001277.2
City represents and warrants to Consultant that, as of the date of this Amendment No. 1, Consultant is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement.
4. Adequate Consideration. The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1.
5. Authority. The persons executing this Amendment No. 1 on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1, such party is formally bound to the provisions of the Agreement, as amended and (iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which said party is bound.
[SIGNATURES ON FOLLOWING PAGE]
01247.0001 2001277.2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date and year first-above written.
CITY:
City of Grand Terrace, a municipal
corporation
___________________________
Bill Hussey, Mayor
ATTEST:
___________________________
Daysi Alcocer, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Adrian R. Guerra, City Attorney
CONSULTANT:
Lance, Soll & Lunghard, LLP, a limited
liability partnership
By:
Name: Ryan Domino
Title: Partner
By:
Name:
Title:
Two corporate officer signatures required when Consultant is a corporation, with one signature from each of the following groups: 1) Chairman of the Board, president or any Vice President; and 2) Secretary. Any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT SIGNATURES SHALL BE DULY NOTORIZED,
AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY. ___________________________
01247.0001 2001277.2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On __________, 2025 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED
DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_________________________
________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
______________________________________
______________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED
ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01247.0001 2001277.2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
On __________, 2025 before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED
DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_________________________
________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
______________________________________
______________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED
ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
AGENDA REPORT
MEETING DATE: May 13, 2025
TITLE: Professional Services Agreement Amendment No. 1 Between the City of Grand Terrace and HDL Companies for Business License Auditing and Administration Services
PRESENTED BY: Christine Clayton, Finance Director
RECOMMENDATION: 1. Approve Professional Services Agreement Amendment No. 1 with HDL Companies (HDL) for Business License Auditing and Administration Services for a term of 1 year and a maximum cost of $15,000.00; and
2. Authorize the Mayor to execute the Agreement subject to City Attorney approval as to form.
2030 VISION STATEMENT:
This staff report supports Goal #1, Ensuring Our Fiscal Viability, by ensuring the City is receiving the business tax revenue to which it is entitled per City ordinance, while also exploring creative means to provide business license administrative services.
BACKGROUND:
In an effort to ensure that all entities doing business with the City have obtained a business license and paid the proper amount of business tax, the Finance Department prepared a Request for Proposal (RFP) for Business License Auditing and Administration Services in October 2020.
These services are specialized in nature and require comprehensive data analysis of records obtained from State agencies, such as the State Board of Equalization and the Franchise Tax Board.
In addition to performing an audit of the business license function, the RFP also requested proposals and pricing for ongoing administration services, to include processing of new applications, processing of annual renewals, and online filing and payment capability. These services were solicited in an effort to improve the City’s efficiency and offer more convenient online processing and payment options for the City’s businesses.
Following this evaluation process, staff selected HDL Companies as the company that would best meet the City’s objectives for Business License Auditing and Administration Services as identified in the RFP. The City signed an agreement with HDL Companies with a 5-year term that is set to expire in October 2025.
DISCUSSION:
It is City staff’s assessment that HDL provides adequate service for the City due to their local location, customer service reputation, and the implementation of Compliance Management Services. The proposed agreement is structured for ongoing administration and discovery/audit services as well, which are expected to provide enhanced efficiency and customer service due to HDL’s specialization
in this area. In particular, providing businesses with the ability to apply for a business license online, renew a business license online, and remit payment of the business tax online represents significant efficiencies for the City.
While a key objective of the Business License Audit and Administration Services is to ensure that all entities doing business with the City have a current business license and pay the correct amount of business tax, the compliance effort will be conducted in a manner to promote good relations with the City’s businesses. City staff and HDL staff work cooperatively throughout the process to provide prompt and comprehensive responses to any questions or concerns coming from businesses.
Staff is recommending that City Council approve the Professional Services Agreement Amendment No. 1 with HDL Companies for Business License Auditing and Administrative Services for a term of one (1) year for a maximum cost of $15,000.00.
ENVIRONMENTAL IMPACT:
N/A
FISCAL IMPACT:
The term of the proposed agreement is one (1) year and will have a total not to exceed the amount of $15,000.00 over that period. This amount will be budgeted accordingly in the FY2025-26 Budget.
2020-03
AGREEMENT FOR CONTRACT SERVICES
By and Between
CITY OF GRAND TERRACE
and
HDL COMPANIES
01247. 0001/ 635149. 3
Special offer
for Cityof Grand Terrace Forrester Research Inc.City of Grand Terrace 60 Acorn Park Dr. 22795 Barton Road Cambridge, MA 02140 Grand Terrace, CA 92313 USA USA www feedbacknow. com Client-#:0387 Offer-#* 03422 January2,
2020 ilson; Mayor McNaboe 1 NOES: None. ABSENT: Council Member Robles ABSTAIN: None. Executed this 15th day of July 2020, at Grand Terrace, California. I_Debra L. Thomas City Clerk J City Clerk SEAL]
AGREEMENT FOR CONTRACT SERVICES
BY AND BETWEEN THE CITY OF GRAND TERRACE AND
HDL COMPANIES
This " AGREEMENT FOR CONTRACT SERVICES BY AND BETWEEN THE CITY OF GRAND TERRACE AND HDL COMPANIES" ( herein " Agreement") is made and entered into this 22nd day ofApril, 2020 by and between the City ofGrand Terrace, a California municipal corporation (" City") and HdL Companies, a California corporation (" Consultant"). City and Consultant are sometimes hereinafter individually referred to as " Party" and hereinafter collectively referred to as the " Parties."
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 ofthis Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Grand Terrace Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Consultant for performance ofthose services defined and described particularly in Article 1 ofthis Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1. 1 Scope of Services.
In compliance with all terms and conditions ofthis Agreement, the Consultant shall provide those services specified in the" Scope of Services" attached hereto as Exhibit" A" and incorporated herein by this reference, which may be referred to herein as the " services" or " work" hereunder.
As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase" highest 01247. 0001/ 635149. 3
2-
Transportation Proiects( thresholds may apply for SB 743 or GHG purposes) Resolution No.2020- 26Page 3of
4 we will not share with the other
insurance,
apply to the 1) The " provided that: f. This insurance does not bodily or "
injury"
property damage" for rendering _ ofor failure
to render any professional services". which coverage is sought occurs; and g. In the event that the Limits of Insurance of the 2) The " personal injury" for which coverage is Coverage Part shown in the Declarations sought arises out of an offense committed; exceed the limits of liability required by the after you have signed that "written contract written contract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that "written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the available to the additional insured when that limits of insurance described in Section III — person or organization
is an additional insured Limits Of Insurance. under any other insurance. CG D3 81 09 15 2015 The Travelers Indemnity Company All rights reserved. Page 1 of 2 Includes the copyrighted
materialofInsurance Services Office, Inc.,with its permission ACCORDANCE
professional standards" shall mean those standards of practice recognized by one or more firstclass firms performing similar work under similar circumstances.
1. 2 Consultant' s Proposal.
The Scope of Service shall include the Consultant' s scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms ofthis Agreement shall govern.
1. 3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1. 4 Licenses, Permits, Fees and Assessments.
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance ofthe services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant' s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1. 5 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant ( i) has thoroughly investigated and considered the scope of services to be performed, ( ii) has carefully considered how the services should be performed, and ( iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant' s risk until written instructions are received from the Contract Officer.
1. 6 Care of Work.
The Consultant shall adopt reasonable methods during the life ofthe Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/ or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City' s own negligence.
01247. 0001/ 635149. 3
3-
share with the other insurance, provided that: f. This insurance does not apply to the 1) The "bodily injury"
or " property damage" for rendering _ of or failure torender any professional services". which coverage is sought occurs; and g. In the event that the Limits of Insurance of the 2) The " personal injury" for which coverage is Coverage Part shown in the Declarations sought arises out of an offense committed; exceed the limits of liability required by the after you have signed that " written contract written contract requiring insurance", the requiring insurance".
But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited tothe limits of liability required and collectible other insurance, whether primary, by that " written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the available to the additional insured when that limitsof
insurance described in Section III — person or organization isan additional insured Limits Of Insurance. under any other insurance. CG D3 81 09 15 2015 The Travelers Indemnity Company All rights
reserved. Page 1 of2 Includes the copyrighted material of
1. 7 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1. 8 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in( i) the Contract Sum for the actual costs ofthe extra work, and/ or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation of up to ten percent ( 10%) of the Contract Sum or$ 25, 000, whichever is less; or, in the time to perform of up to one hundred eighty 180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.
City may in its sole and absolute discretion have similar work done by other consultants. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
1. 9 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the " Special Requirements" attached hereto as Exhibit` B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit `B" and any other provisions of this Agreement, the provisions of Exhibit` B" shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2. 1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the " Schedule of Compensation" attached hereto as Exhibit " C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Seventy Five Thousand Dollars ($ 75, 000) ( the" Contract Sum"), unless additional compensation is approved pursuant to Section 1. 8. 01247 0001/ 635149. 3
4-
share with the other insurance, provided that: f. This insurance does not apply to the 1) The " bodily injury" or "property damage" forrendering _ of or failure to render any professional services". which coverage is sought occurs; and g.
In the event that the Limits of Insurance of the 2)
The "personal injury" for which coverage is Coverage Part shown in the Declarations sought arises out of an offense committed; exceed the limits of liability required by the after you have signed that "written contract written contract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits ofliability required and collectible other insurance, whether primary, by that "written
contract requiring insurance". excess, contingent or on any other basis, that isThis endorsement does not increase the available to the additional insured when that limits of insurance described inSection
III — person or organization is an additional insured Limits Of
2. 2 Method of Compensation.
The method of compensation may include: ( i) a
lump sum payment upon completion; ( ii)
payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; ( iii) payment for time and materials based upon the Consultant' s rates as specified in the Schedule of Compensation, provided that ( a) time estimates are provided for the performance of sub tasks, ( b) contract retention is maintained, and ( c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2. 3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4. 5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2. 4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City' s Director of Finance.
By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor ( by sub- category), travel, materials, equipment, supplies, and sub- contractor contracts. Sub- contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7. 3, City will use its best efforts to cause Consultant to be paid within forty-five (45) days ofreceipt of Consultant' s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2. 5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
01247 0001/ 635149. 3
5-
and g. In the event
that the Limits of Insurance of the 2) The " personal injury" for which coverage is Coverage Part shown in the Declarations sought arises out ofan offense committed; exceed the limits of liability required by the after you have signed that " written contract written contract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that " written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the
available to the additional insured when that limitsofinsurance described in Section III — person or organization is an additional insured Limits Of Insurance. under any other insurance. CG D3 81
09 15 2015 The Travelers Indemnity Company All rights reserved.
ARTICLE 3. PERFORMANCE SCHEDULE
3. 1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3. 2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period( s) established in the Schedule of Performance" attached hereto as Exhibit " D" and incorporated herein by this reference. When requested by the Consultant, extensions to the time period( s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty ( 180) days cumulatively.
3. 3 Force Majeure.
The time period( s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/ or acts of any governmental agency, including the City, if the Consultant shall within ten ( 10) days of the commencement of such delay notify the Contract Officer in writing of the causes ofthe delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer' s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant' s sole remedy being extension of the Agreement pursuant to this Section.
3. 4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding five (5) years from the date hereof, except as otherwise provided in the Schedule of Performance ( Exhibit D»
ARTICLE 4. COORDINATION OF WORK
4. 1 Representatives and Personnel of Consultant.
The following principals of Consultant (" Principals") are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
01247.0001/ 635149.3
6-
ot guarantee that payment will occur
within this time period. In the event any charges or expenses are disputed by City, theoriginal invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any
rights or remedies
provided herein orany applicable law.2.5 Waiver. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects
in
work performed by Consultant. 01247
0001/ 635149. 3 5-and g. In the event that the Limits of Insurance of the 2) The "personal injury" for which coverage is Coverage Part shown in the Declarations sought arises out of an offense committed; exceed the limits of liability required by the after you have signed that " written contract written contract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that " written contract requiring insurance". excess, contingent or on any other
basis, that is This endorsement does not increase the available to the additional of
insured when that limits
insurance described in Section III — person or organization is an additional insured Limits
Of Insurance. under any other insurance. CG D3 81 09
Robert Gray Chief Information Officer
Name) Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant' s staff and subcontractors, ifany, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant' s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4. 2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant' s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant' s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City' s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4. 3 Contract Officer.
The Contract Officer shall be the City Manager or such person as may be designated by the City Manager. It shall be the Consultant' s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4. 4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant' s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any 01247.0001/ 635149.3
7-
tract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that "written contract requiring insurance". excess, contingent oron any other basis, that is This endorsement
does not increase the available to the additional insured when that limits of insurance described in Section III — person or organization is an additional insured Limits Of Insurance. under any other
insurance.CG D3 81 09 15 2015 The Travelers Indemnity
time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
4. 5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent ( 25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5. 1 Insurance Coverages.
The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City:
a) General Liability Insurance ( Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $ 1, 000, 000. 00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit.
b) Worker' s Compensation Insurance. A policy of worker' s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement.
c) Automotive Insurance ( Form CA 0001 ( Ed 1/ 87) including " any auto" and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than 1, 000, 000. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
01247 0001/ 635149. 3
8-
nts, representatives or agents, or in fixing
their number, compensation or hours of service. Consultant shall perform all services required herein asan independent contractor of City and shall remain at all times as toCity a wholly independent contractor with only such
obligations
as are consistent with that role. Consultant shall
not at any 01247. 0001/635149. 3 7-tract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary,by
that "written contract requiring insurance". excess, contingent oron any other basis, that is This endorsement does not increase the available to the additional insured when that limits of insurance described
inSection III — person or organization isan additional insured
d) Professional Liability. Professional liability insurance appropriate to the Consultant' s profession. This coverage may be written on a" claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Consultant' s services or the termination of this Agreement.
During this additional 5- year period, Consultant shall annually and upon request ofthe City submit written evidence of this continuous coverage.
e) Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit" B".
5. 2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Consultant' s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention.
All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty ( 30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence ofinsurance in conformance with Section 5. 1 to the Contract Officer.
No work or services under this Agreement shall commence until the Consultant has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
All certificates shall name the City as additional insured ( providing the appropriate endorsement) and shall conform to the following " cancellation" notice:
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE
CANCELLED BEFORE THE EXPIRATION DATED THEREOF,
THE ISSUING COMPANY SHALL MAIL THIRTY ( 30)- DAY
01247. 0001/ 635149. 3
9-
on
or hours of service. Consultant shall perform all services required herein as an independent contractor of City and
shall remain at all
times
as to City a wholly independent contractor
with only such obligations as are consistent with that role. Consultant shall not at any 01247. 0001/ 635149. 3
7-tract requiring insurance", the requiring insurance". But thisinsurance provided insurance provided tothe additional insured
to
the additional insured still is excess over valid
shall be limited to the limits of liability required and collectible other insurance, whether primary, by that "written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the available tothe additional insured when that limits of insurance described in Section
III — person or organization is an additional insured Limits Of Insurance. under any other insurance. CG D3 81 09 15 2015 The Travelers Indemnity Company All rights reserved. Page 1of
2Includes the copyrighted material of Insurance Services Office, Inc.,
ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
to be initialed]
Consultant Initials
City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or any automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope ofprotection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Consultant' s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits ofthe insurer' s liability.
Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant' s activities or the activities of any person or persons for which the Consultant is otherwise responsible nor shall it limit the Consultant' s indemnification liabilities as provided in Section 5. 3.
In the event the Consultant subcontracts any portion of the work in compliance with Section 4. 5 of this Agreement, the contract between the Consultant and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Consultant is required to maintain pursuant to Section 5. 1, and such certificates and endorsements shall be provided to City.
5. 3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents(" Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened ( herein " claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable(" indemnitors"), or arising from Consultant' s or indemnitors' reckless or willful misconduct, or arising from Consultant' s or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
01247 0001/ 635149. 3
10-
onsultant shall perform all services required herein as an independent contractor of City and
shall remain at all
times
as to City a wholly independent contractor
with only such obligations as are consistent with that role. Consultant shall not at any 01247. 0001/ 635149. 3
7-tract requiring insurance", the requiring insurance". But thisinsurance provided insurance provided tothe additional insured
to
the additional insured still is excess over valid
shall be limited to the limits of liability required and collectible other insurance, whether primary, by that "written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the available tothe additional insured when that limits of insurance described in Section
III — person or organization is an additional insured Limits Of Insurance. under any other insurance. CG D3 81 09 15 2015 The Travelers Indemnity Company All rights reserved. Page 1of
2Includes the copyrighted material of Insurance Services Office, Inc.,
a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorney' s fees incurred in connection therewith;
b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorney' s fees.
Consultant shall incorporate similar indemnity agreements with its subcontractors and ifit fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City' s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City' s negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
5. 4 Sufficiency of Insurer.
Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated" A" or better in the most recent edition ofBest Rating Guide, The Key Rating Guide or in the Federal Register, and only ifthey are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (" Risk Manager") due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the risk manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits ofthe insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager.
01247. 0001/ 635149. 3
11-
on,
covenant
or condition ofthis Agreement, and in
connection therewith: 01247 0001/ 635149. 3 10-onsultant shall perform all services required herein asan independent contractor of City and shall remain at all times as toCity a wholly independent contractor with only such
obligations
as are consistent with that role. Consultant shall
not at any 01247. 0001/635149. 3 7-tract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary,by
that "written contract requiring insurance". excess, contingent oron any other basis, that is This endorsement does not increase the available to the additional insured when that limits of insurance described
inSection III — person or organization isan additional insured
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6. 1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder ( the " books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period ofthree ( 3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant' s business, custody ofthe books and records may be given to City, and access shall be provided by Consultant' s successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6. 2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6. 3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials ( the " documents and materials"), including any electronic documents and materials, prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City in a format of the City' s choice upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/ or use of uncompleted documents without specific written authorization by the Consultant will be at the City' s sole risk and without liability to Consultant, and Consultant' s guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant 01247. 0001/ 635149. 3
12-
nce provided to the additional
insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that " written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the available to the additional insured when that limits of insurance described in Section III — person or organization isan
additional insured Limits Of Insurance. under any other insurance. CG
shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as works made for hire" as defined in 17 U.S. C. § 101, such documents and materials are hereby deemed" works made for hire" for the City.
6. 4 Confidentiality and Release of Information.
a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered " voluntary" provided Consultant gives City notice of such court order or subpoena. c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney' s fees, caused by or incurred as a result of Consultant' s conduct. d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7. 1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U. S. District 01247. 0001/ 635149. 3
13-
ization by the Consultant
willbeatthe City' s solerisk and without liability to Consultant, and Consultant' s guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant 01247. 0001/635149. 3 12-nce provided to the additional insured
to
the additional insured still is
excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that " written contract requiring insurance". excess, contingent or on any other basis, that isThis
endorsement does not increase the available to the additional insured when that limits of insurance described in Section III — person or organization isan additional insured Limits Of Insurance. under any
other insurance. CG D3 81 09 152015 The Travelers
Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.
7. 2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant ofthe default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default.
This timeframe is presumptively thirty ( 30) days, but may be extended, though not reduced, if circumstances warrant. During the period oftime that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all ofthe outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice ofthe Consultant' s default shall not be deemed to result in a waiver of the City' s legal rights or any rights arising out of any provision ofthis Agreement.
7. 3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant whether or not arising out of this Agreement) ( i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and ( ii) all amounts for which City may be liable to third parties, by reason of Consultant' s acts or omissions in performing or failing to perform Consultant' s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7. 4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions ofthis Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7. 5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party 01247.0001/ 635149.3
14-
tee and warranties shall not extend to
such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant 01247. 0001/ 635149.312-nce provided to the additional insured to the additional
insured still is excess over valid shall be limited to
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7. 6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance ofthis Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue a legal action under this Agreement.
7. 7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon written notice to Consultant. In addition, the Consultant may terminate this Contract for cause, upon sixty (60) days' advance written notice to City. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7. 3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7. 2.
7. 8 Termination for Default of Consultant.
Iftermination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7. 2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated( provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
7. 9 Attorney' s Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney' s fees. Attorney' s fees shall include attorney' s fees on any appeal, and in addition a party entitled to attorney' s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs 01247. 0001/ 635149. 3
15-
tend tosuch use, reuse or assignment.
Consultant may retain copies of such documents for its own use. Consultant 01247. 0001/ 635149.3 12-nce provided to
the
additional insured to the additional insured still
is excess over valid shall be limited tothe limits of liability required and collectible other insurance, whether primary, by that "written contract requiring insurance". excess, contingent or on any other
basis, that is This endorsement does not increase the available
the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON- DISCRIMINATION
8. 1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8. 2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant' s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
8. 3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
8. 4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U. S. C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/ or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorney' s fees, incurred by City. 01247. 0001/ 635149. 3
16-
sly
stated.7.9 Attorney'sFees.If either party tothis
Agreement is required to initiate
or defend or made a party to any action or proceeding inany way connected with this Agreement, the prevailing party in such action orproceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney' sfees. Attorney' s fees shall include attorney'sfees on any appeal, and in addition aparty entitled to attorney' s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs 01247. 0001/635149.3 15-tend to such use,reuse or assignment. Consultant may
retain
copies of such documents forits own
use. Consultant 01247. 0001/ 635149. 3 12-nce provided tothe additional insured to the additional insured still is excess
over
valid shall be limited to the limits
of liability required and collectible
or
other insurance, whether primary,by that " written contract requiring insurance". excess, contingent on any other basis, that is This endorsement does not increase the available
tothe additional insured when that limits of insurance described