Jackson City Council Agenda
Monday, October 10, 2022 - 7:00 PM Regular Meeting
Location: Amador County Building, 810 Court Street, Jackson, California 95642 Public Teleconference Line: 1-650-419-1505
Meeting ID: Meeting ID: 261939360
Please join using this link: https://v.ringcentral.com/join/261939360 NOTE: Public attendance is optional, however there is limited seating due to following the social distancing guidelines. You may participate electronically via Zoom Conferencing. Participants will be muted upon entry.
Should you wish to speak upon Public Comment, please “Raise your Hand”, you will be unmuted one at a time and asked to state your name.
1. CEREMONIAL.
• Proclamation to designate November 01, 2022 as EXTRA MILE DAY.
2. APPROVAL OF AGENDA.
Approval of agenda for this date; any and all off-agenda items must be approved by the City Council (pursuant to §54954.2 of the Government Code.)
3. REMOTE MEETING FINDINGS.
Approve findings for remote meetings under AB 361 that social distancing is recommended by state and local health officials and that meeting in person presents imminent risks to the health and safety of attendees.
4. PUBLIC MATTERS NOT ON THE AGENDA.
Discussion items only, no action will be taken. Any person may address the Council at this time on any subject within the jurisdiction of the City Council. Please note – there is a three (3) minute limit.
5. CONSENT CALENDAR.
Items listed on the consent calendar are considered routine and may be enacted by one motion. Any item may be removed for discussion at the request of a Council member. a. Approval of Expenditure Report in the amount of $354,652.49 b. Approval of Payroll Expenditure Report in the amount of August: $345,908.88 Sept: $348,765.85 c. Receive Jackson Building Department for Monthly Report for September 2022. d. Receive Jackson Fire Department Monthly Report for September 2022. e. Resolution 2022-23 Award contracts to Webber Ghio Associates for federal aid projects.
6. ADMINISTRATIVE REPORTS.
This section is to provide staff an opportunity to present oral status reports on issues. No legal action is expected to be taken by the Council.
7. COUNCIL REPORTS.
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Jackson City Council Agenda Monday, October 10, 2022
2 This section is to provide Council members an opportunity to present reports on their activities and to request items be placed on future agendas.
8. DISCUSSION CALENDAR.
a. Receive, discuss and provide necessary direction regarding Ongoing federal aid funded projects – French Bar Bridge, Pitt Bridge, South Ave. Bridge, and Hwy 49 lighting project (City Engineer presentation) [an emphasis on Pitt Bridge in response to prior public comments]
b. Receive, discuss and provide necessary direction regarding Sutter St. Extension design / environmental work project.
c. Public Hearing: possible re-allocation(s) of funding for State Community Development Block Grant (CDBG) CV 2/3 Funding made available through the CARES Act. d. Resolution 2022-22 Approving an Amendment to the Standard Agreement for the 2020 Community Development Block Grant Program Coronavirus Response Round 2&3 (CDBG CV 2 and 3) NOFA dated December 18, 2020.
e. Possible contract award for paving projects – Vukovich Way and Scout Hut Parking Lot.
9. REGULAR MEETING ADJOURNMENT.
Regular meeting adjournment.
UPCOMING MEETINGS:
October 12, 2022 10:00 am Cemetery Meeting
October 17, 2022 6:30 pm Planning Commission
October 24, 2022 7:00 pm Council Meeting
UPCOMING CLOSURE DATES FOR CITY OFFICES:
November 11, 2022 Veteran’s Day
November 24-25, 2022 Thanksgiving
Posted: City Hall, 33 Broadway, Jackson
Agenda materials will be available for review (pursuant to §54957.5 Government Code Section) in the City Clerk’s office in City Hall.
In compliance with the Americans with Disabilities Act (ADA), if you need special assistance to participate in this meeting, you should contact the Office of the City Clerk at (209) 223-1646 (voice) or (209) 223-3141 (fax). Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to this meeting.
Visit our website at http://ci.jackson.ca.us
for copies of previous agendas, minutes and City budget. 2 of 242 2 of 242
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HONORING
Extra Mile Day
A Proclamation Commemorating November 01, 2022 as Extra Mile Day WHEREAS, the City of Jackson, CA, is a community which acknowledges that a special vibrancy exists within the entire community when its individual citizens collectively “go the extra mile” in personal effort, volunteerism, and service; and
WHEREAS, the City of Jackson, CA, is a community which encourages its citizens to maximize their personal contribution to the community by giving of themselves wholeheartedly and with total effort, commitment, and conviction to their individual ambitions, family, friends, and community; and WHEREAS, the City of Jackson, CA, is a community which chooses to shine a light on and celebrate individuals and organizations within its community who “go the extra mile” in order to make a difference and lift up fellow members of their community; and
WHEREAS, the City of Jackson, CA, acknowledges the mission of Extra Mile America to create 550 Extra Mile cities in America and is proud to support “Extra Mile Day” on November 1, 2022.
NOW THEREFORE, I, Mayor of the City of Jackson, CA, do hereby proclaim November 1, 2022, to be Extra Mile Day. I urge each individual in the community to take time on this day to not only “go the extra mile” in his or her own life, but to also acknowledge all those who are inspirational in their efforts and commitment to make their organizations, families, community, country, or world a better place.
Given under the signatures duly noted below and Seal of the City of Jackson, California, this 11th day of October, 2021.
Bob Stimpson, Mayor
Connie Gonsalves, Vice-Mayor
Steve McLean, Councilmember
ATTEST:
Max Godde, Councilmember
John Georgette, City Clerk Chad Simmons, Councilmember
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Item 1
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Item 5a
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Item 5b
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Permit Report
09/01/2022 - 09/30/2022
Permi
t #
Permit
Date
Permit
Type
Description Parcel
#
Parcel
Address
Project
Cost
Total Fees
Group: Addition
9422 9/26/202
2 Addition Interior bathroom
addition and wet bar
addition
20-
353-
001-00
210 KERN
STREET
14,500 $1,034.60
9420 9/26/202
2 Addition detached garage
addition 14x60
20-
171-
003-00
553 NORTH
MAIN
STREET
52,500 $2,212.42
67,000 $3,247.02
Group Total: 2
Group: Building
9425 9/30/202
2 Building changeout 40 gallon
water heater in garage
44-
380-
001-00
310
WESTVIEW
DRIVE
4,400 $214.75
9421 9/26/202
2 Building Roof Mount Solar3.20kW 8 Modules- MPU
to 125AMPS
20-
302-
014-00
434
BRIGHT
AVENUE
9,600 $462.42
9412 9/14/202
2 Building Main panel upgrade 200
amps
44-
090-
010-00
907 VOGAN
TOLL ROAD
5,830 $309.99
9411 9/14/202
2 Building Install roof mount PV
solar 9.48 kW system
with 24 panels.
19,007
9409 9/7/2022 Building Install roof mount PV
solar 6.32 kW system
with 16 panels.
20-
312-
021-00
421
BROADWAY
26,500 $449.33
65,337 $1,436.49
Group Total: 6
Group: Demolition
9424 9/28/202
2 Demolition Removal of three fuel
underground storage
tanks (USTs),
underground product
piping, and fuel
dispensers. Removal of
canopy over dispenser
island. Backfilling of UST
excavation, and product
piping trenches.
Resurfacing of disturbed
areas with asphalt.
20-
382-
006-00
601 STATE
HIGHWAY
49 S.
130,000 $2,133.20
130,00
0 $2,133.20
Group Total: 1
Group: Electrical
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IItem 5c
9423 9/26/202
2 Electrical Re-install of genset from
permit #9065 (expired)
170 KW ATS Platform
gas and Electrical
20-
381-
011-00
555 STATE
HIGHWAY
49 80,000 $2,133.20
80,000 $2,133.20
Group Total: 1
Group: Grading/Excavation
9410 9/13/202
2 Grading/
Excavation
Ultra Block Retaining
Wall along perimeter of
Cemetery
20-
132-
009-00
724 NORTH
MAIN
STREET
25,000 $1,059.38
25,000 $1,059.38
Group Total: 1
Group: Mechanical
9417 9/19/202
2 Mechanical HVAC Replace 3 ton Split
system change out and
replace 1 duct
20-
214-
005-00
211 PINE
STREET
21,162 $341.17
9416 9/15/202
2 Mechanical HVAC C/O: INSTALL 3.5
TON 14 SEER 12.5 EER
96% 80K BTUH split
system
44-
380-
003-00
314
WESTVIEW
DRIVE
18,700 $593.90
39,862 $935.07
Group Total: 2
Group: Reroof
9408 9/7/2022 Reroof REROOF COSTLESS
BUILDING
20-
381-
011-00
555 STATE
HIGHWAY
49 123,000 $610.65
123,00
0 $610.65
Group Total: 1
Group: Solar
9419 9/19/202
2 Solar Roof mounted solar 18
modules 7.2 kw 5.00
kWAC
20-
322-
024-00
28 FRENCH
BAR ROAD
21,600 $489.20
9418 9/19/202
2 Solar New 12.21 KW roof
mount solar 37 S4AUS330B Modules with
micro inverters
44-
074-
001-00
12836 EL
DORADO
WAY
55,000 $519.58
9414 9/15/202
2 Solar New inverter for solar
system
44-
440-
026-00
10575
RIDGECRES
T DRIVE
1,200 $309.55
9413 9/14/202
2 Solar RESIDENTIAL PV
ROOFMOUNT 4.05KW,
10 MODULES, 1
INVERTER
44-
440-
038-00
10533
RIDGECRES
T DRIVE
19,800 $456.68
9407 9/7/2022 Solar ROOF MOUNT SOLAR -
4.00 KW - 10 MODULES
20-
332-
015-00
107
GORDON
PLACE
15,000 $464.98
112,60
0 $2,239.99
Group Total: 5
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Group: Water/Sewer
9415 9/15/202
2 Water/
Sewer
Reroute sewer lateral
grant program through
the city for 406 court st,
409 water st, and 411
water st.
20-
245-
003-00
409 WATER
STREET
5,000 $0.00
5,000 $0.00
Group Total: 1
647,79
9 $13,795.0
0 Total Records: 20 10/3/2022
The Building Department processed 35 total permits in August, 7 more than July. Total number of permits for the year 223 up from 164 last year. Permit Valuation is $6,465,817 up from $3,361,121 last year. Total Fees collected $413,386.46 compared to last year’s $150,497.43 (NOTE These numbers are skewed from the timing of Jackson View permits)
Jackson View Partners is framing 4 and working on foundations on 3 lots on Goldstone Ave. Increased encroachment, reroofs, and solar make up most of the permits for the department. Three ADUS are currently under construction in the city,
The building department has the new online portal up and available on the website for contractors and residents to apply for, manage and pay for permits online. The web page has been updated to include new forms and reference material for contractors and homeowners. This material includes fee schedules, what fees are included for new homes, flyers for building requirements for the city and more.
CODE ENFORCEMENT UPDATE:
Code Enforcement is fielding several complaints for weed abatement, trash/debris, and Animals. Currently the Code enforcement is working to update forms and procedures as well as integrate the reporting process into I WorQs management system the city currently uses for water and building departments.
PROJECTED:
Year to date the building department has issued 224 permits with total valuation of $6,465,817 collecting $413,386.46 in fees. Last year to date the department issued 163 permits with $3,361,121 in valuation collecting $150,497.43 in fees. Jackson View subdivision is planning on obtaining 9 more building permits before the end of the year to finish out the subdivision. Solar, roofs, and HVAC permits still making up most of the permits. The tank replacement for the Chevron station has been held up by the need to get a encroachment permit from Cal Trans to excavate closer to HWY 49/88. The permit was approved, and we expect work to resume shortly. 12 of 242 12 of 242
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Item 5d
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Resolution No. 2022-23
A Resolution of the City Council of the City of Jackson Selecting Weber, Ghio and Associates, Inc.
as the City Engineer,
for Federal Funded Projects
WHEREAS, the City has solicited Proposals and Qualifications from firms interested in providing complete Engineering services associated with delivery of four state funded or federal funded projects administered by Caltrans and FHWA; and, WHEREAS, the four projects are: French Bar Bridge, Pitt St. Bridge, South Ave. Bridge, and Hwy 49 Lighting; and
WHEREAS, the City carefully reviewed the two statements received, interviewed both firms relative to the qualifications required for City projects.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Jackson as follows:
The City Manager is authorized to enter into an agreement with Weber, Ghio and Associates, Inc. to act as City Engineer and provide related services for the above-mentioned projects in a form approved by the City Attorney. Such agreement(s) shall include the rates for services as set forth in Exhibit A.
The foregoing resolution was duly passed and adopted by the City Council of the City of Jackson at a regular meeting on the 6th day of October, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
CITY OF JACKSON
Robert Stimpson, Mayor
ATTEST:
John Georgette, City Clerk
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Item 5e
EXHIBIT A
1. Agreement for French Bar Bridge Replacement – BRLO 5141 (015)
2. Agreement for Pitt Street Bridge Replacement - BRLO 5141 (018)
3. Agreement for South Avenue Bridge Replacement - BRLO 5141 (014)
4. Agreement for Hwy 49 Street Lights – HSIPL 5141 (019) 19 of 242 19 of 242
1 CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
For French Bar Bridge Replacement – BRLO 5141 (015)
This Agreement is made and entered into as of October 10, 2022 by and between the City of Jackson, a California municipal corporation (“City”) and Weber, Ghio & Associates, Inc., (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Consultant desires to perform and assume responsibility for the provision of certain federally funded professional engineering services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing engineering services to public clients, is licensed in the State of California, and is familiar with the plans of City.
B. In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
C. Consultant agrees that it is satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.
D. City must utilize a specific rates of compensation type contract for contracting for Consultant’s services because it is not possible at the time of execution of this Agreement to estimate the extent or duration of the services needed by the City or to estimate costs with any reasonable degree of accuracy due to the unknown projects that City may engage in during the term of this Agreement.
E. City desires to engage Consultant to render such services, on a task order basis, for federally funded City engineering services for the administration and delivery of local, state and federally funded projects
AGREEMENT
1. SCOPE OF SERVICES AND TERM.
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Item 5e2
2 1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering consulting services necessary for the City’s projects (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules, and regulations.
1.2 Term. The term of this Agreement is three years and shall go into effect on October 10, 2022. The Agreement may be extended by written amendment, but in no case shall the term of this Agreement exceed five (5) years. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual written consent, extend the term of this Agreement if necessary to complete the Services.
Consultant’s performance may be evaluated and reviewed by City on an annual basis. A copy of the evaluation will be sent to Consultant for comments. If performed, the evaluation, together with the comments shall be retained as part of the Agreement record.
2. SCHEDULE OF SERVICES.
2.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement and with due and reasonable diligence consistent with sound professional practices and in accordance with the standard of care set forth in Section 5.5.
Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
2.2 Extension of Time. Consultant may, for good cause, request extensions of time to perform the Services required hereunder. Such extensions shall be authorized in advance by the City in writing and shall be incorporated in written amendments to this Agreement.
2.3 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Sections 1.2 and 2.1 above as it may be extended pursuant to Section 2.2 (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or project milestones described in the Exhibits attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
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3 3. FEES AND PAYMENTS.
3.1 Compensation.
3.1.1 Federal Compensation Requirements.
3.1.1.1 Consultant will be reimbursed for hours worked at the hourly rates specified in Consultant’s Cost Proposal (Exhibit “B”). The specified hourly rates shall include direct salary costs, employee benefits, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement.
3.1.1.2 In addition, Consultant will be reimbursed for incurred (actual) direct costs other than salary costs that are in the Federal Cost Proposal and identified in the Federal Cost Proposal and in the executed task order.
3.1.1.3 Specific projects will be assigned to Consultant through issuance of task orders.
3.1.1.4 After a project to be performed under this Agreement is identified by City, City will prepare a draft task order; less the cost estimate. A draft task order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a City project coordinator. The draft task order will be delivered to Consultant for review. Consultant shall return the draft task order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized task order shall be signed by both City and Consultant.
3.1.1.5 Task orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in Consultant’s Federal Cost Proposal.
3.1.1.6 Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Federal Cost Proposal.
3.1.1.7 When milestone cost estimates are included in the approved Federal Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the City’s contract administrator before exceeding such estimate.
3.1.1.8 Progress payments for each task order will be made monthly in arrears based on services provided and actual costs incurred.
3.1.1.9 Consultant shall not commence performance of work or services until this Agreement has been approved by City, and notification to proceed has been issued by City’s contract administrator. No payment will be made prior to approval or for any work performed prior to approval of this Agreement.
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4 3.1.1.10 A task order is of no force or effect until returned to City and signed by an authorized representative of City. No expenditures are authorized on a project and work shall not commence until a task order for that project has been executed by City.
3.1.1.11 Consultant will be reimbursed, as promptly as fiscal procedures will permit upon receipt by City’s contract administrator of itemized invoices in triplicate. Separate invoices itemizing all costs are required for all work performed under each task order. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing, or upon completion of the task order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Federal Cost Proposal and shall reference this Agreement, project title and task order number. Credits due City that include any equipment purchased under the provisions of Section 3.4 - Equipment Purchase of this Agreement, must be reimbursed by Consultant prior to the expiration or termination of this Agreement. Invoices shall be mailed to City’s contract administrator at the following address: City of Jackson; City Manager; 33 Broadway, Jackson, CA 95642.
3.1.1.12 The period of performance for task orders shall be in accordance with dates specified in the task order. No task order will be written which extends beyond the expiration date of this Agreement.
3.1.1.13 The total amount payable by City for an individual task order shall not exceed the amount agreed to in the task order, unless authorized by contract amendment.
3.1.1.14 If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a task order, no payment will be made until the deliverable has been satisfactorily completed.
3.1.1.15 Task orders may not be used to amend this Agreement and may not exceed the scope of work under this Agreement.
3.1.2 Not to Exceed Amount. The total amount payable by City for all Services resulting from this Agreement shall not exceed $509,621.59. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Agreement through task orders or otherwise.
3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon.
No retainage will be withheld by the City from progress payments due the Consultant. Retainage by the Consultant or subconsultants is prohibited, and no retainage will be held by the Consultant from progress due subconsultants. Any violation of this provision shall subject the violating Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed 23 of 242 23 of 242
5 to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE consultants and subconsultants.
3.3 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
3.4 Equipment Purchase. Prior authorization in writing by City’s Representative shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or services in furtherance of Consultant’s performance of Services under this Agreement for which Consultant intends to charge City. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.
For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to City and Consultant. If Consultant desires to sell equipment purchased as a result of this Agreement, the terms and conditions of such sale must be approved in advance by City. 2 CFR, Part 200 requires a credit to federal funds when equipment with a fair market value greater than $5,000 is credited to the project.
4. CHANGES.
4.1 The Parties may, from time to time, request changes in the scope of the Services of Consultant to be performed hereunder. Such changes, including any increase or decrease in the amount of Consultant’s compensation and/or changes in the schedule must be authorized in advance by City in writing. Mutually agreed changes shall be incorporated in written amendments to the Agreement.
4.2 This Agreement may be amended or modified only by mutual written agreement of the Parties.
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6 4.3 Consultant shall only commence work covered by an amendment after the amendment is executed by City and notification to proceed has been provided by City’s Representative.
5. RESPONSIBILITIES OF CONSULTANT.
5.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement.
City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
5.2 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
5.3 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.
As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services or a threat to the safety of persons or property, shall be promptly removed from performance of any Services under this Agreement by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Matt Ospital.
5.3.1 City’s Representative. The City hereby designates Yvonne Kimball, City Manager or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.3.2 Consultant’s Representative. Consultant hereby designates Matt Ospital, or his designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative 25 of 242 25 of 242
7 shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
5.4 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
5.5 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful, competent and customary manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the same region, and performing similar services as defined by this Agreement. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Consultant and shall not be re-employed to perform any of the Services.
5.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures.
Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
Any subcontract entered into as a result of this Agreement, shall contain all of the provisions of this Section.
6. INSURANCE.
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8 6.1 Time for Compliance. Consultant shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
6.2 Types of Required Coverages. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder and without limiting the indemnity provisions of the Agreement, the Consultant in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance.
6.2.1 Commercial General Liability. Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, with minimum limits of at least $1,000,000 per occurrence. Defense costs shall be paid in addition to the limits.
The policy shall contain no endorsements or provisions limiting coverage for (1) products and completed operations; (2) contractual liability; (3) third party action over claims; or (4) cross liability exclusion for claims or suits by one insured against another.
6.2.2 Automobile Liability. Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1) with minimum limits of $1,000,000 each accident.
6.2.3 Workers’ Compensation. Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
6.2.4 Professional Liability. Professional Liability insurance for errors and omissions with minimum limits of $1,000,000. Covered Professional Services shall specifically include all work to be performed under the Agreement.
If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.
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9 6.3 Endorsements.
6.3.1 The policy or policies of insurance required by Sections 6.2.1 Commercial General Liability and 6.2.2 Automobile Liability shall be endorsed to provide the following:
6.3.1.1 Additional Insured. The City, its officials, officers, employees, agents and volunteers shall be additional insureds. The Commercial General Liability policy shall give City, its officials, officers, employees, agents and volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
6.3.1.2 Primary Insurance and Non-Contributing Insurance. This insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents and volunteers shall not contribute with this primary insurance.
6.3.1.3 Waiver of Subrogation. The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.1.4 Severability. In the event of one insured, whether named or additional, incurs liability to any other of the insureds, whether named or additional, the policy shall cover the insured against whom claim is or may be made in the same manner as if separate policies had been issued to each insured, except that the limits of insurance shall not be increased thereby.
6.3.1.5 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.1.6 Duties. Any failure by the named insured to comply with reporting provisions of the policy or breaches or violations of warranties shall not affect coverage provided to the indemnified parties.
6.3.1.7 Applicability. That the coverage provided therein shall apply to the obligations assumed by the Consultant under the indemnity provisions of the Agreement, unless the policy or policies contain a blanket form of contractual liability coverage.
6.3.2 The policy or policies of insurance required by Section 6.2.3 Workers’ Compensation shall be endorsed, as follows:
6.3.2.1 Waiver of Subrogation: The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in 28 of 242 28 of 242
10 compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.2.2 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.3 The policy or policies of insurance required by Section 6.2.4 Professional Liability shall be endorsed, as follows:
6.3.3.1 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.4 Deductible. Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
6.5 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least ten (10) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
6.6 Failure to Maintain Coverage. Consultant agrees to suspend and cease all operations hereunder during such period of time if the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Agreement.
In the event that the Consultant’s operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Work because of production lost during suspension.
6.7 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A-:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 29 of 242 29 of 242
11 6.8 Insurance for Subconsultants. All subconsultants shall be included as additional insureds under the Consultant’s policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured to the subconsultant’s policies.
7. OWNERSHIP OF MATERIALS AND CONFIDENTIALITY.
7.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City's express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of four (4) years following completion of the Agreement, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
7.1.1 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
7.1.2 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Agreement or any project, provided that any such use not within the purposes intended by this Agreement without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than a project for which Services are rendered under this Agreement, it shall remove the Consultant’s seal from the Documents & Data. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any 30 of 242 30 of 242
12 revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant, or for the use of Documents & Data on any other project by City.
7.1.3 Electronic Copies. Consultant shall provide electronic copies of the finished products in the original software format at the conclusion of the respective phases of work.
Complex documents such as reports that utilize more than one type of software shall also be provided in a common format such as Adobe Acrobat (*.pdf). Files of construction drawings shall be provided in a current version of AutoCAD. The Consultant shall archive and maintain copies of all electronic copies of Documents and Data provided to the City. Any claim arising from the use, unintended use, reuse or modifications made of the electronic copies shall be settled by the copies maintained by the Consultant.
7.2 Confidentiality. All Documents & Data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant.
All Documents & Data shall not, without the prior written consent of City or except pursuant to court order, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Documents & Data to any person or entity not connected with the performance of the Services. Nothing furnished to Consultant that is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
7.3 Indemnification. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use under this Agreement by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
8. ACCOUNTING RECORDS.
8.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
8.2 Retention of Records/Audit. For the purpose of determining compliance with Public Contract Code Section 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection all books, documents, papers, accounting records, and 31 of 242 31 of 242
13 other evidence pertaining to the performance of the Agreement, including but not limited to, the costs of administering the Agreement. All Parties shall make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under the Agreement. The state, State Auditor, City, Federal Highway Administration, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to the Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.
8.3 Audit Review Procedures.
8.3.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by City.
8.3.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by City of unresolved audit issues. The request for review will be submitted in writing.
8.3.3 Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.
8.3.4 Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by City to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
8.3.5 Consultant Cost Proposal is subject to a CPA ICR Audit Work Paper Review by Caltrans’ Audit and Investigation (Caltrans). Caltrans, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City’s Representative to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
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14 8.3.5.1 During a Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each Party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at a provisional ICR until a FAR compliant ICR {e.g. 48 CFR, part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials Audit Guide; and other applicable procedures and guidelines}is received and approved by A&I. Provisional rates will be as follows:
8.3.5.1.1 If the proposed rate is less than 150% - the
provisional rate reimbursed will be 90% of the
proposed rate.
8.3.5.1.2 If the proposed rate is between 150% and 200% - the provisional rate will be 85% of the proposed rate.
8.3.5.1.3 If the proposed rate is greater than 200% - the provisional rate will be 75% of the proposed rate.
8.3.5.2 If Caltrans is unable to issue a cognizant letter per paragraph 8.3.5.1. above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
8.3.5.3 If the Consultant fails to comply with the provisions of this Section E, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA-audited ICR is submitted, overhead cost reimbursement will be limited to the provisional ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this provisional ICR will become the actual and final ICR for reimbursement purposes under this Agreement.
8.3.5.4 Consultant may submit to City final invoice only when all of the following items have occurred: (1) Caltrans approves or rejects the original or revised independent CPA-audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) Caltrans has issued its final ICR review letter. The Consultant MUST SUBMIT ITS FINAL INVOICE TO City no later than 60 days after occurrence of the last of these items.
The provisional ICR will apply to this Agreement and all other contracts executed between City and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.
8.4 Inspection of Work. Consultant and any subconsultant shall permit City, the state, and the Federal Highway Administration if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.
9. SUBCONTRACTING.
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15 9.1 Prior Approval Required. City recognizes Consultant, in performance of engineering services set forth herein, will subcontract portions of the work related to the fulfillment of this Agreement. Consultant shall obtain prior written approval of CITY for any subcontract.
All subcontracts, if any, shall be accomplished by a written instrument. Such instrument shall contain an express assumption by the subcontractor of all conditions and terms and covenants contained in this Agreement. Appurtenant professional services may but are not limited to include:
A. Transportation and Traffic Engineering
B. Structural Engineering
C. Surveying
D. Geotechnical Investigation
E. Environmental Investigation and Report Preparation and Mitigation Monitoring
F. Hydraulic Analysis
G. Electrical Engineering
H. Right of Way Appraisal & Acquisition
I. Landscape Architecture
J. Soil and Materials Testing
K. Specialty Construction Inspection (Welding, Coatings, etc.) L. Labor Compliance Verification
Consultant will utilize DBE and UDBE subconsultants to meet annual DBE goals of City.
9.2 Subcontracting. Nothing contained in this Agreement or otherwise, shall create any contractual relation between City and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from City’s obligation to make payments to the Consultant.
Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by City’s Representative, except that, which is expressly identified in the approved Cost Proposal.
Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by City.
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16 Any substitution of subconsultant(s) must be approved in writing by City’s Representative prior to the start of work by the subconsultant(s).
10. TERMINATION OF AGREEMENT.
10.1 Grounds for Termination. City reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant with the reasons for termination stated in the notice. City may terminate this contract with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, City may proceed with the work in any manner deemed proper by City. If City terminates this contract with Consultant, City shall pay Consultant the sum due to Consultant under this contract prior to termination, unless the cost of completion to City exceeds the funds remaining in the Agreement. In which case the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. The maximum amount for which the City shall be liable if this Agreement is terminated is the lesser of the reasonable value of unpaid Services rendered prior to termination or $50,000.
Consultant may not terminate this Agreement except for cause.
10.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) calendar days of the request.
10.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
11. GENERAL PROVISIONS
11.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose:
City:
City of Jackson
33 Broadway
Jackson, CA 95642
Attn: City Manager
Consultant:
Weber, Ghio & Associates, Inc.
P.O. Box 251
394 East St. Charles Street
San Andreas, CA 95249
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17 Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
11.2 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
11.3 Laws and Regulations; Employee/Labor Certifications. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, officers, employees, and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
11.3.1 Employment Eligibility; Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related 36 of 242 36 of 242
18 to Consultant’s compliance with the requirements provided for in Section 11.3 or any of its subsections.
11.3.2 Employment Eligibility; Subcontractors, Consultants, Sub-subcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 11.3.1.
11.3.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-subcontractors or subconsultants to meet any of the requirements provided for in Sections 11.3.1 or 11.3.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section 11.3.2); or (3) failure to immediately remove any person found not to be in compliance with such requirements.
11.3.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (“CARB”). Consultant shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
11.4 Prohibited Interests.
11.4.1 Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
11.4.2 Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement, or any ensuing City 37 of 242 37 of 242
19 construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing City construction project, which will follow.
11.4.3 Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
11.4.4 To the extent Consultant performed any services related to any federally funded project under separate agreement with City, and Consultant now intends to perform any construction administration for such projects under the terms of this Agreement, Consultant agrees as follows:
11.4.4.1 Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this Agreement.
An affiliated firm is one, which is subject to the control of the same persons through jointownership, or otherwise.
11.4.4.2 Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this Agreement shall have provided services on the design of any project included within this Agreement.
11.4.5 Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this Agreement is also employed by the construction contractor for any project included within this Agreement.
11.5 Contingent Fee. Consultant warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this Agreement without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
11.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects.
If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of 38 of 242 38 of 242
20 apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Agreement term and require the same of any subconsultants, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
11.7 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
11.8 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California 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 agrees to comply with such provisions before commencing the performance of the Services.
11.9 Attorneys’ Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.
11.10 Assignment or Transfer. Consultant shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
11.12 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
11.13 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
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21 11.14 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties.
11.15 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Amador County. In addition to any and all Agreement requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
11.16 Time of Essence. Time is of the essence for each and every provision of this Agreement and Consultant agrees to provide Services with due and reasonable diligence consistent with sound professional practices to endeavor to meet the project schedule.
11.17 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days.
All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various sections and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
11.18 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
11.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
11.20 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
11.21 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.22 City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Agreement.
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22 11.23 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
11.24 Federal Provisions. When funding for the Services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (Federal Requirements) attached hereto and incorporated herein by reference. With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
11.25 Cost Principles and Administrative Requirements. Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items for federal aid projects.
Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements For Federal Awards.
Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to City.
11.26 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discretion; to terminate the Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
11.27 Prohibition of Expending City, State, or Federal Funds for Lobbying.
11.27.1 Consultant certifies to the best of his or her knowledge and belief that:
11.27.1.1 No state, federal or local agency appropriated funds have been paid, or will be paid by-or-on behalf of Consultant to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement.
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23 of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; Consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.
11.27.1.3 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
11.27.1.4 Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
11.28 Statement of Compliance.
11.28.1 Consultant’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.
11.28.2 During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (af) et seq.) and the 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
11.28.3 The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
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24 11.28.4 The Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment.
11.29 Debarment and Suspension Certification. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to City.
Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.
Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal Highway Administration.
11.30 Funding Requirements. It is mutually understood between the Parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both Parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to City for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City Council that may affect the provisions, terms, or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds.
City has the option to void the Agreement under the 30-day termination clause pursuant to Section 10, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
11.31 Disadvantaged Business Enterprises (DBE) Participation. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who obtain DBE participation on this Agreement will assist Caltrans in meeting its federally mandated statewide overall DBE goal.
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25 The goal for DBE participation for this Agreement is 32%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as City deems appropriate.
Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section.
A DBE firm may be terminated only with prior written approval from City and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the termination, Consultant must meet the procedural requirements specified in 49 CFR 26.53(f).
A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors.
A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of the contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
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26 Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), FirstTier Subconsultants” CEM-2402F [Exhibit 17-F, of the LAPM], certified correct by Consultant or Consultant’s authorized representative and shall be furnished to the City’s Representative with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to Consultant when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the City’s Representative.
If a DBE subconsultant is decertified during the life of the contract, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the contract, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to City’s Representative within 30 days.
11.32 Disputes.
11.32.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City’s Representative and another City staff member to be designated by City when the dispute arises, who may consider written or verbal information submitted by Consultant.
11.32.2 Not later than 30 days after completion of all work under the Agreement, Consultant may request review by the City Council of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
11.32.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.
11.33 Construction Contractor Claims. If claims are filed by City’s construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement.
Services of Consultant’s personnel in connection with City’s construction contractor claims will be performed pursuant to a written amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
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27 11.34 Provisions Required By Law or Funding. Each and every provision required by the funding source of this Agreement or other applicable law to be includes within this Agreement, including by way of illustration and not by limitation, those provisions required by Chapter 10 of the Local Assistance Procedures Manual published by Caltrans (“LAPM”), shall be deemed inserted herein as if fully set forth herein and the Agreement shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party the Agreement shall forthwith be physically amended to make such insertion or correction retroactively effective as of the first date this Agreement was entered into. LAPM Exhibit 10-R is incorporated herein by reference to the extent necessary to comply with the requirements of the funding source of this Agreement or other applicable law.
[SIGNATURES ON NEXT PAGE]
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28 SIGNATURE PAGE
TO
CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
CITY OF JACKSON Weber, Ghio & Associates, Inc.
By: ___________________________ By: ___________________________ City Manager President
Attest:
By: ___________________________
City Clerk
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A-1
EXHIBIT “A”
SCOPE OF SERVICES
The French Bar Bridge over the south fork of Jackson Creek in the City of Jackson was selected and approved for funding for rehabilitation or replacement as part of the Federal HBP program. The existing one-lane structure is 15’-8” wide and is comprised of a 32.2’ long single span cast-in-place reinforced concrete deck on steel stringers supported on concrete abutments. In 2010 the Caltrans bridge maintenance inspection report assigned a Sufficiency Rating of 67.2 to this structure. Caltrans has deemed the existing bridge roadway, bridge railing, and guardrail transitions, approaches, and ends, all to be Functionally Obsolete. Often during high water events, flood water overtops the existing structure.
The WGA team understands the City may be receiving approval for the construction funding phase for this project soon. The team is ready to prepare the deliverable package for the finish line. We know exactly
what still needs to be done while anyone else would have ten years of project history to process before beginning to prepare final deliverables.
The plans, specifications, and estimate (PS&E) for the French Bar Bridge Replacement Project is currently 95% completed. WGA will coordinate efforts with property owners and obtain a Right of Entry (if necessary) for any construction work on their property. WGA will also cross check PS&E with Burne Engineering, perform QA/QC and provide 100% PS&E documents for bidding. During the bidding process, WGA will assist the City with any written questions from Contractor’s, prepare any necessary project addendums, review DBE commitments, and take the project to City Council for Award.
WGA would provide construction management services for the construction phase of the project. This work would include the following:
• Preparing Caltrans Award Package
• Provide full time project inspector
• Provide Resident Engineer services
• Coordination with City and property owners
• Coordination with other federal/state agencies for construction compliance • Managing subconsultants for environmental monitoring, construction staking, geotechnical observation, materials testing, and structural oversight. • Reviewing project submittals, preparing contract change orders, processing progress payments and meeting with the City as needed.
• Project closeout
• Sierra Geotech will provide sufficient field testers to adequately inspect key construction elements. We intend to provide field inspection on Contractor’s construction on a daily basis or as requested by the Construction Manager. We will provide, coordinate and monitor field and laboratory testing of soils, backfill, asphalt, concrete, rebar and other testing as requested by applicable specifications. Certified technicians will complete all testing work and laboratory testing will be carried out in our Caltrans and AASHTO AMRL certified laboratory in Rocklin, CA.
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A-2
Project deliverables for each phase of work are as follows:
1. Design
• 100% PS&E Package
2. Construction Management
• Electronic & Paper Files
• Inspection/Resident Engineer Binder
• Asbuilt Drawings
To meet major project time constraints, some specialty services are subcontracted. In this manner a broad range of professional services can be provided for large or complex projects without incurring unnecessary overhead costs. Having a local team with offices in San Andreas and Sutter Creek, that has a large history with this project, will help keep project costs down and on budget.
WGA is very familiar with Caltrans District 10 staff and federal aid process. Our deliverables, contracts, and invoicing are always prepared to meet Caltrans Local Assistance requirements. This makes reimbursement, construction authorizations, and project closeout efficient for the City to administer.
Timely delivery of projects administered through Caltrans District 10 is driven by understanding of and compliance with the processes and procedures that must be followed when using federal and state funding.
The plans are approximately 95% completed, therefore there are no critical design issues anticipated.
There is also no known critical environmental design issues. All environmental requirements have been addressed in the project plans and specifications. Due to the uncertainty of construction funding and the volatile economy and increasing construction costs it is hard to predict how construction bid prices will come in.
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B-1
EXHIBIT “B”
All invoicing shall be in accordance with 48-CFR and 49-CFR, Part 18.20; FAR Compliant Indirect Cost Rates and Direct Costs.
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B-2
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B-7
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B-8
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C-1
EXHIBIT “C”
FEDERAL PROVISIONS
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C-2
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C-3
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1 CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
For Pitt St. Bridge Replacement BRLO 5141 (018)
This Agreement is made and entered into as of October 10, 2022 by and between the City of Jackson, a California municipal corporation (“City”) and Weber, Ghio & Associates, Inc., (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Consultant desires to perform and assume responsibility for the provision of certain federally funded professional engineering services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing engineering services to public clients, is licensed in the State of California, and is familiar with the plans of City.
B. In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
C. Consultant agrees that it is satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.
D. City must utilize a specific rates of compensation type contract for contracting for Consultant’s services because it is not possible at the time of execution of this Agreement to estimate the extent or duration of the services needed by the City or to estimate costs with any reasonable degree of accuracy due to the unknown projects that City may engage in during the term of this Agreement.
E. City desires to engage Consultant to render such services, on a task order basis, for federally funded City engineering services for the administration and delivery of local, state and federally funded projects
AGREEMENT
1. SCOPE OF SERVICES AND TERM.
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Item 7e2
2 1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering consulting services necessary for the City projects (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules, and regulations.
1.2 Term. The term of this Agreement is three years and shall go into effect on October 10, 2022. The Agreement may be extended by written amendment, but in no case shall the term of this Agreement exceed five (5) years. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual written consent, extend the term of this Agreement if necessary to complete the Services.
Consultant’s performance may be evaluated and reviewed by City on an annual basis. A copy of the evaluation will be sent to Consultant for comments. If performed, the evaluation, together with the comments shall be retained as part of the Agreement record.
2. SCHEDULE OF SERVICES.
2.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement and with due and reasonable diligence consistent with sound professional practices and in accordance with the standard of care set forth in Section 5.5.
Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
2.2 Extension of Time. Consultant may, for good cause, request extensions of time to perform the Services required hereunder. Such extensions shall be authorized in advance by the City in writing and shall be incorporated in written amendments to this Agreement.
2.3 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Sections 1.2 and 2.1 above as it may be extended pursuant to Section 2.2 (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or project milestones described in the Exhibits attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
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3 3. FEES AND PAYMENTS.
3.1 Compensation.
3.1.1 Federal Compensation Requirements.
3.1.1.1 Consultant will be reimbursed for hours worked at the hourly rates specified in Consultant’s Cost Proposal (Exhibit “B”). The specified hourly rates shall include direct salary costs, employee benefits, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement.
3.1.1.2 In addition, Consultant will be reimbursed for incurred (actual) direct costs other than salary costs that are in the Federal Cost Proposal and identified in the Federal Cost Proposal and in the executed task order.
3.1.1.3 Specific projects will be assigned to Consultant through issuance of task orders.
3.1.1.4 After a project to be performed under this Agreement is identified by City, City will prepare a draft task order; less the cost estimate. A draft task order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a City project coordinator. The draft task order will be delivered to Consultant for review. Consultant shall return the draft task order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized task order shall be signed by both City and Consultant.
3.1.1.5 Task orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in Consultant’s Federal Cost Proposal.
3.1.1.6 Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Federal Cost Proposal.
3.1.1.7 When milestone cost estimates are included in the approved Federal Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the City’s contract administrator before exceeding such estimate.
3.1.1.8 Progress payments for each task order will be made monthly in arrears based on services provided and actual costs incurred.
3.1.1.9 Consultant shall not commence performance of work or services until this Agreement has been approved by City, and notification to proceed has been issued by City’s contract administrator. No payment will be made prior to approval or for any work performed prior to approval of this Agreement.
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4 3.1.1.10 A task order is of no force or effect until returned to City and signed by an authorized representative of City. No expenditures are authorized on a project and work shall not commence until a task order for that project has been executed by City.
3.1.1.11 Consultant will be reimbursed, as promptly as fiscal procedures will permit upon receipt by City’s contract administrator of itemized invoices in triplicate. Separate invoices itemizing all costs are required for all work performed under each task order. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing, or upon completion of the task order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Federal Cost Proposal and shall reference this Agreement, project title and task order number. Credits due City that include any equipment purchased under the provisions of Section 3.4 - Equipment Purchase of this Agreement, must be reimbursed by Consultant prior to the expiration or termination of this Agreement. Invoices shall be mailed to City’s contract administrator at the following address: City of Jackson; City Manager; 33 Broadway, Jackson, CA 95642.
3.1.1.12 The period of performance for task orders shall be in accordance with dates specified in the task order. No task order will be written which extends beyond the expiration date of this Agreement.
3.1.1.13 The total amount payable by City for an individual task order shall not exceed the amount agreed to in the task order, unless authorized by contract amendment.
3.1.1.14 If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a task order, no payment will be made until the deliverable has been satisfactorily completed.
3.1.1.15 Task orders may not be used to amend this Agreement and may not exceed the scope of work under this Agreement.
3.1.2 Not to Exceed Amount. The total amount payable by City for all Services resulting from this Agreement shall not exceed $489,063.94. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Agreement through task orders or otherwise.
3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon.
No retainage will be withheld by the City from progress payments due the Consultant. Retainage by the Consultant or subconsultants is prohibited, and no retainage will be held by the Consultant from progress due subconsultants. Any violation of this provision shall subject the violating Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed 74 of 242 74 of 242
5 to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE consultants and subconsultants.
3.3 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
3.4 Equipment Purchase. Prior authorization in writing by City’s Representative shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or services in furtherance of Consultant’s performance of Services under this Agreement for which Consultant intends to charge City. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.
For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to City and Consultant. If Consultant desires to sell equipment purchased as a result of this Agreement, the terms and conditions of such sale must be approved in advance by City. 2 CFR, Part 200 requires a credit to federal funds when equipment with a fair market value greater than $5,000 is credited to the project.
4. CHANGES.
4.1 The Parties may, from time to time, request changes in the scope of the Services of Consultant to be performed hereunder. Such changes, including any increase or decrease in the amount of Consultant’s compensation and/or changes in the schedule must be authorized in advance by City in writing. Mutually agreed changes shall be incorporated in written amendments to the Agreement.
4.2 This Agreement may be amended or modified only by mutual written agreement of the Parties.
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6 4.3 Consultant shall only commence work covered by an amendment after the amendment is executed by City and notification to proceed has been provided by City’s Representative.
5. RESPONSIBILITIES OF CONSULTANT.
5.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement.
City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
5.2 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
5.3 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.
As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services or a threat to the safety of persons or property, shall be promptly removed from performance of any Services under this Agreement by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Matt Ospital.
5.3.1 City’s Representative. The City hereby designates Yvonne Kimball, City Manager or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.3.2 Consultant’s Representative. Consultant hereby designates Matt Ospital, or his designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative 76 of 242 76 of 242
7 shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
5.4 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
5.5 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful, competent and customary manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the same region, and performing similar services as defined by this Agreement. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Consultant and shall not be re-employed to perform any of the Services.
5.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures.
Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
Any subcontract entered into as a result of this Agreement, shall contain all of the provisions of this Section.
6. INSURANCE.
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8 6.1 Time for Compliance. Consultant shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
6.2 Types of Required Coverages. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder and without limiting the indemnity provisions of the Agreement, the Consultant in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance.
6.2.1 Commercial General Liability. Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, with minimum limits of at least $1,000,000 per occurrence. Defense costs shall be paid in addition to the limits.
The policy shall contain no endorsements or provisions limiting coverage for (1) products and completed operations; (2) contractual liability; (3) third party action over claims; or (4) cross liability exclusion for claims or suits by one insured against another.
6.2.2 Automobile Liability. Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1) with minimum limits of $1,000,000 each accident.
6.2.3 Workers’ Compensation. Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
6.2.4 Professional Liability. Professional Liability insurance for errors and omissions with minimum limits of $1,000,000. Covered Professional Services shall specifically include all work to be performed under the Agreement.
If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.
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9 6.3 Endorsements.
6.3.1 The policy or policies of insurance required by Sections 6.2.1 Commercial General Liability and 6.2.2 Automobile Liability shall be endorsed to provide the following:
6.3.1.1 Additional Insured. The City, its officials, officers, employees, agents and volunteers shall be additional insureds. The Commercial General Liability policy shall give City, its officials, officers, employees, agents and volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
6.3.1.2 Primary Insurance and Non-Contributing Insurance. This insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents and volunteers shall not contribute with this primary insurance.
6.3.1.3 Waiver of Subrogation. The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.1.4 Severability. In the event of one insured, whether named or additional, incurs liability to any other of the insureds, whether named or additional, the policy shall cover the insured against whom claim is or may be made in the same manner as if separate policies had been issued to each insured, except that the limits of insurance shall not be increased thereby.
6.3.1.5 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.1.6 Duties. Any failure by the named insured to comply with reporting provisions of the policy or breaches or violations of warranties shall not affect coverage provided to the indemnified parties.
6.3.1.7 Applicability. That the coverage provided therein shall apply to the obligations assumed by the Consultant under the indemnity provisions of the Agreement, unless the policy or policies contain a blanket form of contractual liability coverage.
6.3.2 The policy or policies of insurance required by Section 6.2.3 Workers’ Compensation shall be endorsed, as follows:
6.3.2.1 Waiver of Subrogation: The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in 79 of 242 79 of 242
10 compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.2.2 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.3 The policy or policies of insurance required by Section 6.2.4 Professional Liability shall be endorsed, as follows:
6.3.3.1 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.4 Deductible. Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
6.5 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least ten (10) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
6.6 Failure to Maintain Coverage. Consultant agrees to suspend and cease all operations hereunder during such period of time if the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Agreement.
In the event that the Consultant’s operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Work because of production lost during suspension.
6.7 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A-:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 80 of 242 80 of 242
11 6.8 Insurance for Subconsultants. All subconsultants shall be included as additional insureds under the Consultant’s policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured to the subconsultant’s policies.
7. OWNERSHIP OF MATERIALS AND CONFIDENTIALITY.
7.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City's express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of four (4) years following completion of the Agreement, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
7.1.1 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
7.1.2 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Agreement or any project, provided that any such use not within the purposes intended by this Agreement without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than a project for which Services are rendered under this Agreement, it shall remove the Consultant’s seal from the Documents & Data. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any 81 of 242 81 of 242
12 revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant, or for the use of Documents & Data on any other project by City.
7.1.3 Electronic Copies. Consultant shall provide electronic copies of the finished products in the original software format at the conclusion of the respective phases of work.
Complex documents such as reports that utilize more than one type of software shall also be provided in a common format such as Adobe Acrobat (*.pdf). Files of construction drawings shall be provided in a current version of AutoCAD. The Consultant shall archive and maintain copies of all electronic copies of Documents and Data provided to the City. Any claim arising from the use, unintended use, reuse or modifications made of the electronic copies shall be settled by the copies maintained by the Consultant.
7.2 Confidentiality. All Documents & Data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant.
All Documents & Data shall not, without the prior written consent of City or except pursuant to court order, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Documents & Data to any person or entity not connected with the performance of the Services. Nothing furnished to Consultant that is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
7.3 Indemnification. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use under this Agreement by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
8. ACCOUNTING RECORDS.
8.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
8.2 Retention of Records/Audit. For the purpose of determining compliance with Public Contract Code Section 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection all books, documents, papers, accounting records, and 82 of 242 82 of 242
13 other evidence pertaining to the performance of the Agreement, including but not limited to, the costs of administering the Agreement. All Parties shall make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under the Agreement. The state, State Auditor, City, Federal Highway Administration, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to the Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.
8.3 Audit Review Procedures.
8.3.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by City.
8.3.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by City of unresolved audit issues. The request for review will be submitted in writing.
8.3.3 Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.
8.3.4 Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by City to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
8.3.5 Consultant Cost Proposal is subject to a CPA ICR Audit Work Paper Review by Caltrans’ Audit and Investigation (Caltrans). Caltrans, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City’s Representative to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
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14 8.3.5.1 During a Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each Party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at a provisional ICR until a FAR compliant ICR {e.g. 48 CFR, part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials Audit Guide; and other applicable procedures and guidelines}is received and approved by A&I. Provisional rates will be as follows:
8.3.5.1.1 If the proposed rate is less than 150% - the
provisional rate reimbursed will be 90% of the
proposed rate.
8.3.5.1.2 If the proposed rate is between 150% and 200% - the provisional rate will be 85% of the proposed rate.
8.3.5.1.3 If the proposed rate is greater than 200% - the provisional rate will be 75% of the proposed rate.
8.3.5.2 If Caltrans is unable to issue a cognizant letter per paragraph 8.3.5.1. above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
8.3.5.3 If the Consultant fails to comply with the provisions of this Section E, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA-audited ICR is submitted, overhead cost reimbursement will be limited to the provisional ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this provisional ICR will become the actual and final ICR for reimbursement purposes under this Agreement.
8.3.5.4 Consultant may submit to City final invoice only when all of the following items have occurred: (1) Caltrans approves or rejects the original or revised independent CPA-audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) Caltrans has issued its final ICR review letter. The Consultant MUST SUBMIT ITS FINAL INVOICE TO City no later than 60 days after occurrence of the last of these items.
The provisional ICR will apply to this Agreement and all other contracts executed between City and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.
8.4 Inspection of Work. Consultant and any subconsultant shall permit City, the state, and the Federal Highway Administration if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.
9. SUBCONTRACTING.
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15 9.1 Prior Approval Required. City recognizes Consultant, in performance of engineering services set forth herein, will subcontract portions of the work related to the fulfillment of this Agreement. Consultant shall obtain prior written approval of CITY for any subcontract.
All subcontracts, if any, shall be accomplished by a written instrument. Such instrument shall contain an express assumption by the subcontractor of all conditions and terms and covenants contained in this Agreement. Appurtenant professional services may but are not limited to include:
A. Transportation and Traffic Engineering
B. Structural Engineering
C. Surveying
D. Geotechnical Investigation
E. Environmental Investigation and Report Preparation and Mitigation Monitoring
F. Hydraulic Analysis
G. Electrical Engineering
H. Right of Way Appraisal & Acquisition
I. Landscape Architecture
J. Soil and Materials Testing
K. Specialty Construction Inspection (Welding, Coatings, etc.) L. Labor Compliance Verification
Consultant will utilize DBE and UDBE subconsultants to meet annual DBE goals of City.
9.2 Subcontracting. Nothing contained in this Agreement or otherwise, shall create any contractual relation between City and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from City’s obligation to make payments to the Consultant.
Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by City’s Representative, except that, which is expressly identified in the approved Cost Proposal.
Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by City.
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16 Any substitution of subconsultant(s) must be approved in writing by City’s Representative prior to the start of work by the subconsultant(s).
10. TERMINATION OF AGREEMENT.
10.1 Grounds for Termination. City reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant with the reasons for termination stated in the notice. City may terminate this contract with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, City may proceed with the work in any manner deemed proper by City. If City terminates this contract with Consultant, City shall pay Consultant the sum due to Consultant under this contract prior to termination, unless the cost of completion to City exceeds the funds remaining in the Agreement. In which case the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. The maximum amount for which the City shall be liable if this Agreement is terminated is the lesser of the reasonable value of unpaid Services rendered prior to termination or $50,000.
Consultant may not terminate this Agreement except for cause.
10.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) calendar days of the request.
10.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
11. GENERAL PROVISIONS
11.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose:
City:
City of Jackson
33 Broadway
Jackson, CA 95642
Attn: City Manager
Consultant:
Weber, Ghio & Associates, Inc.
P.O. Box 251
394 East St. Charles Street
San Andreas, CA 95249
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17 Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
11.2 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
11.3 Laws and Regulations; Employee/Labor Certifications. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, officers, employees, and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
11.3.1 Employment Eligibility; Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related 87 of 242 87 of 242
18 to Consultant’s compliance with the requirements provided for in Section 11.3 or any of its subsections.
11.3.2 Employment Eligibility; Subcontractors, Consultants, Sub-subcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 11.3.1.
11.3.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-subcontractors or subconsultants to meet any of the requirements provided for in Sections 11.3.1 or 11.3.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section 11.3.2); or (3) failure to immediately remove any person found not to be in compliance with such requirements.
11.3.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (“CARB”). Consultant shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
11.4 Prohibited Interests.
11.4.1 Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
11.4.2 Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement, or any ensuing City 88 of 242 88 of 242
19 construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing City construction project, which will follow.
11.4.3 Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
11.4.4 To the extent Consultant performed any services related to any federally funded project under separate agreement with City, and Consultant now intends to perform any construction administration for such projects under the terms of this Agreement, Consultant agrees as follows:
11.4.4.1 Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this Agreement.
An affiliated firm is one, which is subject to the control of the same persons through jointownership, or otherwise.
11.4.4.2 Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this Agreement shall have provided services on the design of any project included within this Agreement.
11.4.5 Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this Agreement is also employed by the construction contractor for any project included within this Agreement.
11.5 Contingent Fee. Consultant warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this Agreement without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
11.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects.
If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of 89 of 242 89 of 242
20 apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Agreement term and require the same of any subconsultants, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
11.7 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
11.8 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California 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 agrees to comply with such provisions before commencing the performance of the Services.
11.9 Attorneys’ Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.
11.10 Assignment or Transfer. Consultant shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
11.12 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
11.13 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
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21 11.14 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties.
11.15 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Amador County. In addition to any and all Agreement requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
11.16 Time of Essence. Time is of the essence for each and every provision of this Agreement and Consultant agrees to provide Services with due and reasonable diligence consistent with sound professional practices to endeavor to meet the project schedule.
11.17 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days.
All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various sections and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
11.18 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
11.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
11.20 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
11.21 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.22 City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Agreement.
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22 11.23 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
11.24 Federal Provisions. When funding for the Services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (Federal Requirements) attached hereto and incorporated herein by reference. With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
11.25 Cost Principles and Administrative Requirements. Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items for federal aid projects.
Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements For Federal Awards.
Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to City.
11.26 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discretion; to terminate the Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
11.27 Prohibition of Expending City, State, or Federal Funds for Lobbying.
11.27.1 Consultant certifies to the best of his or her knowledge and belief that:
11.27.1.1 No state, federal or local agency appropriated funds have been paid, or will be paid by-or-on behalf of Consultant to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement.
11.27.1.2 If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee 92 of 242 92 of 242
23 of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; Consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.
11.27.1.3 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
11.27.1.4 Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
11.28 Statement of Compliance.
11.28.1 Consultant’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.
11.28.2 During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (af) et seq.) and the 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
11.28.3 The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
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24 11.28.4 The Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment.
11.29 Debarment and Suspension Certification. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to City.
Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.
Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal Highway Administration.
11.30 Funding Requirements. It is mutually understood between the Parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both Parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to City for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City Council that may affect the provisions, terms, or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds.
City has the option to void the Agreement under the 30-day termination clause pursuant to Section 10, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
11.31 Disadvantaged Business Enterprises (DBE) Participation. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who obtain DBE participation on this Agreement will assist Caltrans in meeting its federally mandated statewide overall DBE goal.
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25 The goal for DBE participation for this Agreement is 32%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as City deems appropriate.
Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section.
A DBE firm may be terminated only with prior written approval from City and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the termination, Consultant must meet the procedural requirements specified in 49 CFR 26.53(f).
A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors.
A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of the contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
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26 Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), FirstTier Subconsultants” CEM-2402F [Exhibit 17-F, of the LAPM], certified correct by Consultant or Consultant’s authorized representative and shall be furnished to the City’s Representative with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to Consultant when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the City’s Representative.
If a DBE subconsultant is decertified during the life of the contract, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the contract, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to City’s Representative within 30 days.
11.32 Disputes.
11.32.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City’s Representative and another City staff member to be designated by City when the dispute arises, who may consider written or verbal information submitted by Consultant.
11.32.2 Not later than 30 days after completion of all work under the Agreement, Consultant may request review by the City Council of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
11.32.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.
11.33 Construction Contractor Claims. If claims are filed by City’s construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement.
Services of Consultant’s personnel in connection with City’s construction contractor claims will be performed pursuant to a written amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
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27 11.34 Provisions Required By Law or Funding. Each and every provision required by the funding source of this Agreement or other applicable law to be includes within this Agreement, including by way of illustration and not by limitation, those provisions required by Chapter 10 of the Local Assistance Procedures Manual published by Caltrans (“LAPM”), shall be deemed inserted herein as if fully set forth herein and the Agreement shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party the Agreement shall forthwith be physically amended to make such insertion or correction retroactively effective as of the first date this Agreement was entered into. LAPM Exhibit 10-R is incorporated herein by reference to the extent necessary to comply with the requirements of the funding source of this Agreement or other applicable law.
[SIGNATURES ON NEXT PAGE]
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28 SIGNATURE PAGE
TO
CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
CITY OF JACKSON Weber, Ghio & Associates, Inc.
By: ___________________________ By: ___________________________ City Manager President
Attest:
By: ___________________________
City Clerk
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A-1
EXHIBIT “A”
SCOPE OF SERVICES
The existing Jackson Creek Bridge on Pitt Street is a one-way single lane bridge, over the middle fork of Jackson Creek in the City of Jackson It was constructed in 1925 and is located within the City of Jackson’s Historic Corridor. The existing structure consists of a single span steel Pratt pony truss with timber decking on steel floor beams, all supported on concrete abutments. Caltrans Structure Maintenance and Investigations has deemed the existing bridge to be Structurally Deficient and assigned a Sufficiency Rating of 22.5 out of 100. In 1983 the bridge was closed due to advanced deterioration. In 1985 the bridge underwent limited repairs and was reopened. Within the last few years, the City put a layer of asphalt topping on the deck. Currently it is posted with a maximum loading of 3 tons, however it was recently closed after the asphalt topping began deteriorating. Due to age of the bridge and structure type, the existing bridge is eligible for listing in the National Register of Historic Places; a programmatic Section 4(f) evaluation was undertaken to assess any impacts to the historic bridge. The team is ready to prepare the deliverable package for the finish line. We know exactly what still needs to be done while anyone else would have ten years of project history to process before beginning to prepare final deliverables. The plans, specifications, and estimate for the Pitt Street Bridge Replacement Project is currently 65% completed. WGA will complete the right of way acquisition and extend the temporary construction easement (TCE) for the right of way portion of the project. WGA will respond to Caltrans 65% plan check comments and update the PS&E to 90% at the next submittal to Caltrans. When 90% PS&E comments are received from Caltrans, WGA will cross check PS&E with Burne Engineering, perform QA/QC and provide 100% PS&E documents for bidding. During the bidding process, WGA will assist the City with any written questions from Contractor’s, prepare any necessary project addendums, review DBE commitments, and take the project to City Council for Award.
WGA would provide construction management services for the construction phase of the project.
This work would include the following:
• Preparing Caltrans Award Package
• Managing project consultant for historical documentation • Provide full time project inspector
• Provide Resident Engineer Services
• Coordination with City and property owners
• Coordination with other federal/state agencies for construction compliance • Managing subconsultants for environmental monitoring, construction staking, geotechnical observation, materials testing, and structural oversight. • Reviewing project submittals, preparing contract change orders, processing progress payments and meeting with the City as needed.
• Project closeout
• Sierra Geotech will provide sufficient field testers to adequately inspect key construction elements. We intend to provide field inspection on Contractor’s construction on a daily basis or as requested by the Construction Manager. We will provide, coordinate and monitor field and laboratory testing of soils, backfill, asphalt, concrete, rebar and other testing as requested by applicable specifications. Certified technicians will complete all testing work and 99 of 242 99 of 242
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laboratory testing will be carried out in our Caltrans and AASHTO AMRL certified laboratory in Rocklin, CA.
Project deliverables for each phase of work are as follows:
1. Design
90% PS&E Package
100% PS&E Package
Historical Documentation of Existing Pitt Street Bridge
2. Construction Management
Electronic & Paper Files
Inspection/Resident Engineer Binder
Asbuilt Drawings
To meet major project time constraints, some specialty services are subcontracted. In this manner a broad range of professional services can be provided for large or complex projects without incurring unnecessary overhead costs. Having a local team with offices in San Andreas and Sutter Creek, that has a large history with this project, will help keep project costs down and on budget.
WGA is very familiar with Caltrans District 10 staff and federal aid process. Our deliverables, contracts, and invoicing are always prepared to meet Caltrans Local Assistance requirements. This makes reimbursement, construction authorizations, and project closeout efficient for the City to administer.
Timely delivery of projects administered through Caltrans District 10 is driven by understanding of and compliance with the processes and procedures that must be followed when using federal and state funding.
The plans are approximately 65% completed and the critical design issue is getting Caltrans signing off the riverine hydraulics. WGA will address this by updating the hydraulics report that Watson Clifford prepared. Critical environmental issues have been identified in the NEPA and CEQA environmental documents. Mitigation measures will be addressed in the project specifications and historical documentation will be provided by our subconsultant prior to work commencing. Due to the uncertainty of construction funding and the volatile economy and increasing construction costs it is hard to predict how construction bid prices will come in. WGA believes the cost and schedule could be minimized by retaining the current design staff.
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EXHIBIT “B”
All invoicing shall be in accordance with 48-CFR and 49-CFR, Part 18.20; FAR Compliant Indirect Cost Rates and Direct Costs.
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B-3
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B-4
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B-8
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B-10
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B-12
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B-13
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B-14
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B-16
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B-17
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B-18
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B-19
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B-20
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B-21
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B-22
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C-1
EXHIBIT “C”
FEDERAL PROVISIONS
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1 CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
For South Avenue Bridge Replacement – BRLO 5141 (014)
This Agreement is made and entered into as of October 10, 2022 by and between the City of Jackson, a California municipal corporation (“City”) and Weber, Ghio & Associates, Inc., (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Consultant desires to perform and assume responsibility for the provision of certain federally funded professional engineering services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing engineering services to public clients, is licensed in the State of California, and is familiar with the plans of City.
B. In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
C. Consultant agrees that it is satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.
D. City must utilize a specific rates of compensation type contract for contracting for Consultant’s services because it is not possible at the time of execution of this Agreement to estimate the extent or duration of the services needed by the City or to estimate costs with any reasonable degree of accuracy due to the unknown projects that City may engage in during the term of this Agreement.
E. City desires to engage Consultant to render such services, on a task order basis, for federally funded City engineering services for the administration and delivery of local, state and federally funded projects
AGREEMENT
1. SCOPE OF SERVICES AND TERM.
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2 1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering consulting services necessary for the City’s projects (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules, and regulations.
1.2 Term. The term of this Agreement is three years and shall go into effect on October 10, 2022. The Agreement may be extended by written amendment, but in no case shall the term of this Agreement exceed five (5) years. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual written consent, extend the term of this Agreement if necessary to complete the Services.
Consultant’s performance may be evaluated and reviewed by City on an annual basis. A copy of the evaluation will be sent to Consultant for comments. If performed, the evaluation, together with the comments shall be retained as part of the Agreement record.
2. SCHEDULE OF SERVICES.
2.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement and with due and reasonable diligence consistent with sound professional practices and in accordance with the standard of care set forth in Section 5.5.
Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
2.2 Extension of Time. Consultant may, for good cause, request extensions of time to perform the Services required hereunder. Such extensions shall be authorized in advance by the City in writing and shall be incorporated in written amendments to this Agreement.
2.3 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Sections 1.2 and 2.1 above as it may be extended pursuant to Section 2.2 (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or project milestones described in the Exhibits attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
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3 3. FEES AND PAYMENTS.
3.1 Compensation.
3.1.1 Federal Compensation Requirements.
3.1.1.1 Consultant will be reimbursed for hours worked at the hourly rates specified in Consultant’s Cost Proposal (Exhibit “B”). The specified hourly rates shall include direct salary costs, employee benefits, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement.
3.1.1.2 In addition, Consultant will be reimbursed for incurred (actual) direct costs other than salary costs that are in the Federal Cost Proposal and identified in the Federal Cost Proposal and in the executed task order.
3.1.1.3 Specific projects will be assigned to Consultant through issuance of task orders.
3.1.1.4 After a project to be performed under this Agreement is identified by City, City will prepare a draft task order; less the cost estimate. A draft task order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a City project coordinator. The draft task order will be delivered to Consultant for review. Consultant shall return the draft task order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized task order shall be signed by both City and Consultant.
3.1.1.5 Task orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in Consultant’s Federal Cost Proposal.
3.1.1.6 Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Federal Cost Proposal.
3.1.1.7 When milestone cost estimates are included in the approved Federal Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the City’s contract administrator before exceeding such estimate.
3.1.1.8 Progress payments for each task order will be made monthly in arrears based on services provided and actual costs incurred.
3.1.1.9 Consultant shall not commence performance of work or services until this Agreement has been approved by City, and notification to proceed has been issued by City’s contract administrator. No payment will be made prior to approval or for any work performed prior to approval of this Agreement.
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4 3.1.1.10 A task order is of no force or effect until returned to City and signed by an authorized representative of City. No expenditures are authorized on a project and work shall not commence until a task order for that project has been executed by City.
3.1.1.11 Consultant will be reimbursed, as promptly as fiscal procedures will permit upon receipt by City’s contract administrator of itemized invoices in triplicate. Separate invoices itemizing all costs are required for all work performed under each task order. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing, or upon completion of the task order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Federal Cost Proposal and shall reference this Agreement, project title and task order number. Credits due City that include any equipment purchased under the provisions of Section 3.4 - Equipment Purchase of this Agreement, must be reimbursed by Consultant prior to the expiration or termination of this Agreement. Invoices shall be mailed to City’s contract administrator at the following address: City of Jackson; City Manager; 33 Broadway, Jackson, CA 95642.
3.1.1.12 The period of performance for task orders shall be in accordance with dates specified in the task order. No task order will be written which extends beyond the expiration date of this Agreement.
3.1.1.13 The total amount payable by City for an individual task order shall not exceed the amount agreed to in the task order, unless authorized by contract amendment.
3.1.1.14 If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a task order, no payment will be made until the deliverable has been satisfactorily completed.
3.1.1.15 Task orders may not be used to amend this Agreement and may not exceed the scope of work under this Agreement.
3.1.2 Not to Exceed Amount. The total amount payable by City for all Services resulting from this Agreement shall not exceed $894,449.93. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Agreement through task orders or otherwise.
3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon.
No retainage will be withheld by the City from progress payments due the Consultant. Retainage by the Consultant or subconsultants is prohibited, and no retainage will be held by the Consultant from progress due subconsultants. Any violation of this provision shall subject the violating Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed 129 of 242 129 of 242
5 to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE consultants and subconsultants.
3.3 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
3.4 Equipment Purchase. Prior authorization in writing by City’s Representative shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or services in furtherance of Consultant’s performance of Services under this Agreement for which Consultant intends to charge City. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.
For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to City and Consultant. If Consultant desires to sell equipment purchased as a result of this Agreement, the terms and conditions of such sale must be approved in advance by City. 2 CFR, Part 200 requires a credit to federal funds when equipment with a fair market value greater than $5,000 is credited to the project.
4. CHANGES.
4.1 The Parties may, from time to time, request changes in the scope of the Services of Consultant to be performed hereunder. Such changes, including any increase or decrease in the amount of Consultant’s compensation and/or changes in the schedule must be authorized in advance by City in writing. Mutually agreed changes shall be incorporated in written amendments to the Agreement.
4.2 This Agreement may be amended or modified only by mutual written agreement of the Parties.
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6 4.3 Consultant shall only commence work covered by an amendment after the amendment is executed by City and notification to proceed has been provided by City’s Representative.
5. RESPONSIBILITIES OF CONSULTANT.
5.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement.
City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
5.2 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
5.3 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.
As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services or a threat to the safety of persons or property, shall be promptly removed from performance of any Services under this Agreement by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Matt Ospital.
5.3.1 City’s Representative. The City hereby designates Yvonne Kimball, City Manager or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.3.2 Consultant’s Representative. Consultant hereby designates Matt Ospital, or his designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative 131 of 242 131 of 242
7 shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
5.4 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
5.5 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful, competent and customary manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the same region, and performing similar services as defined by this Agreement. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Consultant and shall not be re-employed to perform any of the Services.
5.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures.
Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
Any subcontract entered into as a result of this Agreement, shall contain all of the provisions of this Section.
6. INSURANCE.
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8 6.1 Time for Compliance. Consultant shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
6.2 Types of Required Coverages. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder and without limiting the indemnity provisions of the Agreement, the Consultant in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance.
6.2.1 Commercial General Liability. Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, with minimum limits of at least $1,000,000 per occurrence. Defense costs shall be paid in addition to the limits.
The policy shall contain no endorsements or provisions limiting coverage for (1) products and completed operations; (2) contractual liability; (3) third party action over claims; or (4) cross liability exclusion for claims or suits by one insured against another.
6.2.2 Automobile Liability. Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1) with minimum limits of $1,000,000 each accident.
6.2.3 Workers’ Compensation. Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
6.2.4 Professional Liability. Professional Liability insurance for errors and omissions with minimum limits of $1,000,000. Covered Professional Services shall specifically include all work to be performed under the Agreement.
If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.
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9 6.3 Endorsements.
6.3.1 The policy or policies of insurance required by Sections 6.2.1 Commercial General Liability and 6.2.2 Automobile Liability shall be endorsed to provide the following:
6.3.1.1 Additional Insured. The City, its officials, officers, employees, agents and volunteers shall be additional insureds. The Commercial General Liability policy shall give City, its officials, officers, employees, agents and volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
6.3.1.2 Primary Insurance and Non-Contributing Insurance. This insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents and volunteers shall not contribute with this primary insurance.
6.3.1.3 Waiver of Subrogation. The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.1.4 Severability. In the event of one insured, whether named or additional, incurs liability to any other of the insureds, whether named or additional, the policy shall cover the insured against whom claim is or may be made in the same manner as if separate policies had been issued to each insured, except that the limits of insurance shall not be increased thereby.
6.3.1.5 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.1.6 Duties. Any failure by the named insured to comply with reporting provisions of the policy or breaches or violations of warranties shall not affect coverage provided to the indemnified parties.
6.3.1.7 Applicability. That the coverage provided therein shall apply to the obligations assumed by the Consultant under the indemnity provisions of the Agreement, unless the policy or policies contain a blanket form of contractual liability coverage.
6.3.2 The policy or policies of insurance required by Section 6.2.3 Workers’ Compensation shall be endorsed, as follows:
6.3.2.1 Waiver of Subrogation: The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in 134 of 242 134 of 242
10 compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.2.2 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.3 The policy or policies of insurance required by Section 6.2.4 Professional Liability shall be endorsed, as follows:
6.3.3.1 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.4 Deductible. Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
6.5 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least ten (10) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
6.6 Failure to Maintain Coverage. Consultant agrees to suspend and cease all operations hereunder during such period of time if the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Agreement.
In the event that the Consultant’s operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Work because of production lost during suspension.
6.7 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A-:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 135 of 242 135 of 242
11 6.8 Insurance for Subconsultants. All subconsultants shall be included as additional insureds under the Consultant’s policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured to the subconsultant’s policies.
7. OWNERSHIP OF MATERIALS AND CONFIDENTIALITY.
7.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City's express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of four (4) years following completion of the Agreement, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
7.1.1 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
7.1.2 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Agreement or any project, provided that any such use not within the purposes intended by this Agreement without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than a project for which Services are rendered under this Agreement, it shall remove the Consultant’s seal from the Documents & Data. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any 136 of 242 136 of 242
12 revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant, or for the use of Documents & Data on any other project by City.
7.1.3 Electronic Copies. Consultant shall provide electronic copies of the finished products in the original software format at the conclusion of the respective phases of work.
Complex documents such as reports that utilize more than one type of software shall also be provided in a common format such as Adobe Acrobat (*.pdf). Files of construction drawings shall be provided in a current version of AutoCAD. The Consultant shall archive and maintain copies of all electronic copies of Documents and Data provided to the City. Any claim arising from the use, unintended use, reuse or modifications made of the electronic copies shall be settled by the copies maintained by the Consultant.
7.2 Confidentiality. All Documents & Data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant.
All Documents & Data shall not, without the prior written consent of City or except pursuant to court order, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Documents & Data to any person or entity not connected with the performance of the Services. Nothing furnished to Consultant that is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
7.3 Indemnification. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use under this Agreement by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
8. ACCOUNTING RECORDS.
8.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
8.2 Retention of Records/Audit. For the purpose of determining compliance with Public Contract Code Section 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection all books, documents, papers, accounting records, and 137 of 242 137 of 242
13 other evidence pertaining to the performance of the Agreement, including but not limited to, the costs of administering the Agreement. All Parties shall make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under the Agreement. The state, State Auditor, City, Federal Highway Administration, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to the Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.
8.3 Audit Review Procedures.
8.3.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by City.
8.3.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by City of unresolved audit issues. The request for review will be submitted in writing.
8.3.3 Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.
8.3.4 Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by City to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
8.3.5 Consultant Cost Proposal is subject to a CPA ICR Audit Work Paper Review by Caltrans’ Audit and Investigation (Caltrans). Caltrans, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City’s Representative to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
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14 8.3.5.1 During a Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each Party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at a provisional ICR until a FAR compliant ICR {e.g. 48 CFR, part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials Audit Guide; and other applicable procedures and guidelines}is received and approved by A&I. Provisional rates will be as follows:
8.3.5.1.1 If the proposed rate is less than 150% - the
provisional rate reimbursed will be 90% of the
proposed rate.
8.3.5.1.2 If the proposed rate is between 150% and 200% - the provisional rate will be 85% of the proposed rate.
8.3.5.1.3 If the proposed rate is greater than 200% - the provisional rate will be 75% of the proposed rate.
8.3.5.2 If Caltrans is unable to issue a cognizant letter per paragraph 8.3.5.1. above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
8.3.5.3 If the Consultant fails to comply with the provisions of this Section E, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA-audited ICR is submitted, overhead cost reimbursement will be limited to the provisional ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this provisional ICR will become the actual and final ICR for reimbursement purposes under this Agreement.
8.3.5.4 Consultant may submit to City final invoice only when all of the following items have occurred: (1) Caltrans approves or rejects the original or revised independent CPA-audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) Caltrans has issued its final ICR review letter. The Consultant MUST SUBMIT ITS FINAL INVOICE TO City no later than 60 days after occurrence of the last of these items.
The provisional ICR will apply to this Agreement and all other contracts executed between City and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.
8.4 Inspection of Work. Consultant and any subconsultant shall permit City, the state, and the Federal Highway Administration if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.
9. SUBCONTRACTING.
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15 9.1 Prior Approval Required. City recognizes Consultant, in performance of engineering services set forth herein, will subcontract portions of the work related to the fulfillment of this Agreement. Consultant shall obtain prior written approval of CITY for any subcontract.
All subcontracts, if any, shall be accomplished by a written instrument. Such instrument shall contain an express assumption by the subcontractor of all conditions and terms and covenants contained in this Agreement. Appurtenant professional services may but are not limited to include:
A. Transportation and Traffic Engineering
B. Structural Engineering
C. Surveying
D. Geotechnical Investigation
E. Environmental Investigation and Report Preparation and Mitigation Monitoring
F. Hydraulic Analysis
G. Electrical Engineering
H. Right of Way Appraisal & Acquisition
I. Landscape Architecture
J. Soil and Materials Testing
K. Specialty Construction Inspection (Welding, Coatings, etc.) L. Labor Compliance Verification
Consultant will utilize DBE and UDBE subconsultants to meet annual DBE goals of City.
9.2 Subcontracting. Nothing contained in this Agreement or otherwise, shall create any contractual relation between City and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from City’s obligation to make payments to the Consultant.
Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by City’s Representative, except that, which is expressly identified in the approved Cost Proposal.
Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by City.
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16 Any substitution of subconsultant(s) must be approved in writing by City’s Representative prior to the start of work by the subconsultant(s).
10. TERMINATION OF AGREEMENT.
10.1 Grounds for Termination. City reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant with the reasons for termination stated in the notice. City may terminate this contract with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, City may proceed with the work in any manner deemed proper by City. If City terminates this contract with Consultant, City shall pay Consultant the sum due to Consultant under this contract prior to termination, unless the cost of completion to City exceeds the funds remaining in the Agreement. In which case the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. The maximum amount for which the City shall be liable if this Agreement is terminated is the lesser of the reasonable value of unpaid Services rendered prior to termination or $50,000.
Consultant may not terminate this Agreement except for cause.
10.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) calendar days of the request.
10.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
11. GENERAL PROVISIONS
11.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose:
City:
City of Jackson
33 Broadway
Jackson, CA 95642
Attn: City Manager
Consultant:
Weber, Ghio & Associates, Inc.
P.O. Box 251
394 East St. Charles Street
San Andreas, CA 95249
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17 Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
11.2 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
11.3 Laws and Regulations; Employee/Labor Certifications. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, officers, employees, and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
11.3.1 Employment Eligibility; Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related 142 of 242 142 of 242
18 to Consultant’s compliance with the requirements provided for in Section 11.3 or any of its subsections.
11.3.2 Employment Eligibility; Subcontractors, Consultants, Sub-subcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 11.3.1.
11.3.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-subcontractors or subconsultants to meet any of the requirements provided for in Sections 11.3.1 or 11.3.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section 11.3.2); or (3) failure to immediately remove any person found not to be in compliance with such requirements.
11.3.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (“CARB”). Consultant shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
11.4 Prohibited Interests.
11.4.1 Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
11.4.2 Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement, or any ensuing City 143 of 242 143 of 242
19 construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing City construction project, which will follow.
11.4.3 Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
11.4.4 To the extent Consultant performed any services related to any federally funded project under separate agreement with City, and Consultant now intends to perform any construction administration for such projects under the terms of this Agreement, Consultant agrees as follows:
11.4.4.1 Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this Agreement.
An affiliated firm is one, which is subject to the control of the same persons through jointownership, or otherwise.
11.4.4.2 Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this Agreement shall have provided services on the design of any project included within this Agreement.
11.4.5 Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this Agreement is also employed by the construction contractor for any project included within this Agreement.
11.5 Contingent Fee. Consultant warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this Agreement without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
11.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects.
If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of 144 of 242 144 of 242
20 apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Agreement term and require the same of any subconsultants, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
11.7 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
11.8 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California 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 agrees to comply with such provisions before commencing the performance of the Services.
11.9 Attorneys’ Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.
11.10 Assignment or Transfer. Consultant shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
11.12 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
11.13 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
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21 11.14 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties.
11.15 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Amador County. In addition to any and all Agreement requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
11.16 Time of Essence. Time is of the essence for each and every provision of this Agreement and Consultant agrees to provide Services with due and reasonable diligence consistent with sound professional practices to endeavor to meet the project schedule.
11.17 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days.
All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various sections and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
11.18 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
11.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
11.20 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
11.21 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.22 City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Agreement.
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22 11.23 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
11.24 Federal Provisions. When funding for the Services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (Federal Requirements) attached hereto and incorporated herein by reference. With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
11.25 Cost Principles and Administrative Requirements. Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items for federal aid projects.
Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements For Federal Awards.
Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to City.
11.26 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discretion; to terminate the Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
11.27 Prohibition of Expending City, State, or Federal Funds for Lobbying.
11.27.1 Consultant certifies to the best of his or her knowledge and belief that:
11.27.1.1 No state, federal or local agency appropriated funds have been paid, or will be paid by-or-on behalf of Consultant to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement.
11.27.1.2 If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee 147 of 242 147 of 242
23 of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; Consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.
11.27.1.3 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
11.27.1.4 Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
11.28 Statement of Compliance.
11.28.1 Consultant’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.
11.28.2 During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (af) et seq.) and the 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
11.28.3 The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
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24 11.28.4 The Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment.
11.29 Debarment and Suspension Certification. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to City.
Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.
Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal Highway Administration.
11.30 Funding Requirements. It is mutually understood between the Parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both Parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to City for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City Council that may affect the provisions, terms, or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds.
City has the option to void the Agreement under the 30-day termination clause pursuant to Section 10, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
11.31 Disadvantaged Business Enterprises (DBE) Participation. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who obtain DBE participation on this Agreement will assist Caltrans in meeting its federally mandated statewide overall DBE goal.
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25 The goal for DBE participation for this Agreement is 32%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as City deems appropriate.
Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section.
A DBE firm may be terminated only with prior written approval from City and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the termination, Consultant must meet the procedural requirements specified in 49 CFR 26.53(f).
A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors.
A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of the contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
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26 Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), FirstTier Subconsultants” CEM-2402F [Exhibit 17-F, of the LAPM], certified correct by Consultant or Consultant’s authorized representative and shall be furnished to the City’s Representative with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to Consultant when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the City’s Representative.
If a DBE subconsultant is decertified during the life of the contract, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the contract, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to City’s Representative within 30 days.
11.32 Disputes.
11.32.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City’s Representative and another City staff member to be designated by City when the dispute arises, who may consider written or verbal information submitted by Consultant.
11.32.2 Not later than 30 days after completion of all work under the Agreement, Consultant may request review by the City Council of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
11.32.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.
11.33 Construction Contractor Claims. If claims are filed by City’s construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement.
Services of Consultant’s personnel in connection with City’s construction contractor claims will be performed pursuant to a written amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
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27 11.34 Provisions Required By Law or Funding. Each and every provision required by the funding source of this Agreement or other applicable law to be includes within this Agreement, including by way of illustration and not by limitation, those provisions required by Chapter 10 of the Local Assistance Procedures Manual published by Caltrans (“LAPM”), shall be deemed inserted herein as if fully set forth herein and the Agreement shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party the Agreement shall forthwith be physically amended to make such insertion or correction retroactively effective as of the first date this Agreement was entered into. LAPM Exhibit 10-R is incorporated herein by reference to the extent necessary to comply with the requirements of the funding source of this Agreement or other applicable law.
[SIGNATURES ON NEXT PAGE]
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28 SIGNATURE PAGE
TO
CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
CITY OF JACKSON Weber, Ghio & Associates, Inc.
By: ___________________________ By: ___________________________ City Manager President
Attest:
By: ___________________________
City Clerk
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A-1
EXHIBIT “A”
SCOPE OF SERVICES
The South Avenue Bridge over South Fork Jackson Creek is a one-way single lane bridge, in the City of Jackson, and was constructed in 1925. The existing superstructure consists of single span steel stringers with concrete deck. The bottom surface of the concrete soffit is arched between the girders, and the girders are embedded into the concrete. The abutments are concrete wall abutments, assumed to be on spread footings. Caltrans Structure Maintenance and Investigations has deemed the existing bridge to be Functionally Obsolete, assessing a Sufficiency Rating of 56.5 in the Caltrans Structure Maintenance and Investigations Branch Bridge Inspection Report 2020. The existing structure has been overtopped during high intensity rain events. The team is ready to prepare the deliverable package for the finish line. We know exactly what still needs to be done while anyone else would have ten years of project history to process before beginning to prepare final deliverables. The plans, specifications, and estimate (PS&E) for the South Avenue Bridge Replacement Project is currently 35% completed. WGA will have our subconsultant complete the hydraulic analysis and WGA will complete the right of way certification for the project. WGA will then proceed with 65% project plans and submit to Caltrans. Once comments are received, we will respond to Caltrans 65% plan check comments and update the PS&E to 90% at the next submittal to Caltrans. When 90% PS&E comments are received from Caltrans, WGA will cross check PS&E with Burne Engineering, perform QA/QC and provide 100% PS&E documents for bidding.
During the bidding process, WGA will assist the City with any written questions from Contractor’s, prepare any necessary project addendums, review DBE commitments, and take the project to City Council for Award.
WGA would provide construction management services for the construction phase of the project.
This work would include the following:
• Preparing Caltrans Award Package
• Provide full time project inspector
• Provide Resident Engineer services
• Coordination with City and property owners
• Coordination with other federal/state agencies for construction compliance • Managing subconsultants for environmental monitoring, construction staking, geotechnical observation, materials testing, and structural oversight. • Reviewing project submittals, preparing contract change orders, processing progress payments and meeting with the City as needed.
• Project closeout
• Sierra Geotech will provide sufficient field testers to adequately inspect key construction elements. We intend to provide field inspection on Contractor’s construction on a daily basis or as requested by the Construction Manager. We will provide, coordinate and monitor field and laboratory testing of soils, backfill, asphalt, concrete, rebar, and other testing as requested by applicable specifications. Certified technicians will complete all testing work and laboratory testing will be carried out in our Caltrans and AASHTO AMRL certified laboratory in Rocklin, CA.
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A-2
Project deliverables for each phase of work are as follows:
1. Design
Final Hydraulic Report
65% PS&E Package
90% PS&E Package
100% PS&E Package
2. Construction Management
Electronic & Paper Files
Inspection/Resident Engineer Binder
Asbuilt Drawings
To meet major project time constraints, some specialty services are subcontracted. In this manner a broad range of professional services can be provided for large or complex projects without incurring unnecessary overhead costs. Having a local team with offices in San Andreas and Sutter Creek, that has a large history with this project, will help keep project costs down and on budget.
WGA is very familiar with Caltrans District 10 staff and federal aid process. Our deliverables, contracts, and invoicing are always prepared to meet Caltrans Local Assistance requirements. This makes reimbursement, construction authorizations, and project closeout efficient for the City to administer.
Timely delivery of projects administered through Caltrans District 10 is driven by understanding of and compliance with the processes and procedures that must be followed when using federal and state funding.
The plans are approximately 35% completed and the critical design issue is getting Caltrans signing off the riverine hydraulics. WGA will address this by having our hydraulic subconsultant prepare the Final Hydraulic Design report including preparing a LOMR/CLOMR. Critical environmental issues have been identified in the NEPA and CEQA environmental documents. Mitigation measures will be addressed in the project specifications. Due to the uncertainty of construction funding and the volatile economy and increasing construction costs it is hard to predict how construction bid prices will come in.
WGA believes the cost and schedule could be minimized by retaining the current design staff. 155 of 242 155 of 242
B-1
EXHIBIT “B”
All invoicing shall be in accordance with 48-CFR and 49-CFR, Part 18.20; FAR Compliant Indirect Cost Rates and Direct Costs.
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C-1
EXHIBIT “C”
FEDERAL PROVISIONS
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C-3
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1 CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
For Hwy 49 Street Lights – HSIPL 5141 (019)
This Agreement is made and entered into as of October 10, 2022 by and between the City of Jackson, a California municipal corporation (“City”) and Weber, Ghio & Associates, Inc., (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Consultant desires to perform and assume responsibility for the provision of certain federally funded professional engineering services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing engineering services to public clients, is licensed in the State of California, and is familiar with the plans of City.
B. In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
C. Consultant agrees that it is satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.
D. City must utilize a specific rates of compensation type contract for contracting for Consultant’s services because it is not possible at the time of execution of this Agreement to estimate the extent or duration of the services needed by the City or to estimate costs with any reasonable degree of accuracy due to the unknown projects that City may engage in during the term of this Agreement.
E. City desires to engage Consultant to render such services, on a task order basis, for federally funded City engineering services for the administration and delivery of local, state and federally funded projects
AGREEMENT
1. SCOPE OF SERVICES AND TERM.
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Item 5e4
2 1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering consulting services necessary for the City’s projects (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules, and regulations.
1.2 Term. The term of this Agreement is three years and shall go into effect on October 10, 2022. The Agreement may be extended by written amendment, but in no case shall the term of this Agreement exceed five (5) years. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual written consent, extend the term of this Agreement if necessary to complete the Services.
Consultant’s performance may be evaluated and reviewed by City on an annual basis. A copy of the evaluation will be sent to Consultant for comments. If performed, the evaluation, together with the comments shall be retained as part of the Agreement record.
2. SCHEDULE OF SERVICES.
2.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement and with due and reasonable diligence consistent with sound professional practices and in accordance with the standard of care set forth in Section 5.5.
Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
2.2 Extension of Time. Consultant may, for good cause, request extensions of time to perform the Services required hereunder. Such extensions shall be authorized in advance by the City in writing and shall be incorporated in written amendments to this Agreement.
2.3 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Sections 1.2 and 2.1 above as it may be extended pursuant to Section 2.2 (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or project milestones described in the Exhibits attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
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3 3. FEES AND PAYMENTS.
3.1 Compensation.
3.1.1 Federal Compensation Requirements.
3.1.1.1 Consultant will be reimbursed for hours worked at the hourly rates specified in Consultant’s Cost Proposal (Exhibit “B”). The specified hourly rates shall include direct salary costs, employee benefits, overhead, and fee. These rates are not adjustable for the performance period set forth in this Agreement.
3.1.1.2 In addition, Consultant will be reimbursed for incurred (actual) direct costs other than salary costs that are in the Federal Cost Proposal and identified in the Federal Cost Proposal and in the executed task order.
3.1.1.3 Specific projects will be assigned to Consultant through issuance of task orders.
3.1.1.4 After a project to be performed under this Agreement is identified by City, City will prepare a draft task order; less the cost estimate. A draft task order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a City project coordinator. The draft task order will be delivered to Consultant for review. Consultant shall return the draft task order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized task order shall be signed by both City and Consultant.
3.1.1.5 Task orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in Consultant’s Federal Cost Proposal.
3.1.1.6 Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Federal Cost Proposal.
3.1.1.7 When milestone cost estimates are included in the approved Federal Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the City’s contract administrator before exceeding such estimate.
3.1.1.8 Progress payments for each task order will be made monthly in arrears based on services provided and actual costs incurred.
3.1.1.9 Consultant shall not commence performance of work or services until this Agreement has been approved by City, and notification to proceed has been issued by City’s contract administrator. No payment will be made prior to approval or for any work performed prior to approval of this Agreement.
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4 3.1.1.10 A task order is of no force or effect until returned to City and signed by an authorized representative of City. No expenditures are authorized on a project and work shall not commence until a task order for that project has been executed by City.
3.1.1.11 Consultant will be reimbursed, as promptly as fiscal procedures will permit upon receipt by City’s contract administrator of itemized invoices in triplicate. Separate invoices itemizing all costs are required for all work performed under each task order. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing, or upon completion of the task order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Federal Cost Proposal and shall reference this Agreement, project title and task order number. Credits due City that include any equipment purchased under the provisions of Section 3.4 - Equipment Purchase of this Agreement, must be reimbursed by Consultant prior to the expiration or termination of this Agreement. Invoices shall be mailed to City’s contract administrator at the following address: City of Jackson; City Manager; 33 Broadway, Jackson, CA 95642.
3.1.1.12 The period of performance for task orders shall be in accordance with dates specified in the task order. No task order will be written which extends beyond the expiration date of this Agreement.
3.1.1.13 The total amount payable by City for an individual task order shall not exceed the amount agreed to in the task order, unless authorized by contract amendment.
3.1.1.14 If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a task order, no payment will be made until the deliverable has been satisfactorily completed.
3.1.1.15 Task orders may not be used to amend this Agreement and may not exceed the scope of work under this Agreement.
3.1.2 Not to Exceed Amount. The total amount payable by City for all Services resulting from this Agreement shall not exceed $69,602.41. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Agreement through task orders or otherwise.
3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon.
No retainage will be withheld by the City from progress payments due the Consultant. Retainage by the Consultant or subconsultants is prohibited, and no retainage will be held by the Consultant from progress due subconsultants. Any violation of this provision shall subject the violating Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed 183 of 242 183 of 242
5 to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE consultants and subconsultants.
3.3 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
3.4 Equipment Purchase. Prior authorization in writing by City’s Representative shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or services in furtherance of Consultant’s performance of Services under this Agreement for which Consultant intends to charge City. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.
For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to City and Consultant. If Consultant desires to sell equipment purchased as a result of this Agreement, the terms and conditions of such sale must be approved in advance by City. 2 CFR, Part 200 requires a credit to federal funds when equipment with a fair market value greater than $5,000 is credited to the project.
4. CHANGES.
4.1 The Parties may, from time to time, request changes in the scope of the Services of Consultant to be performed hereunder. Such changes, including any increase or decrease in the amount of Consultant’s compensation and/or changes in the schedule must be authorized in advance by City in writing. Mutually agreed changes shall be incorporated in written amendments to the Agreement.
4.2 This Agreement may be amended or modified only by mutual written agreement of the Parties.
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6 4.3 Consultant shall only commence work covered by an amendment after the amendment is executed by City and notification to proceed has been provided by City’s Representative.
5. RESPONSIBILITIES OF CONSULTANT.
5.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement.
City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
5.2 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
5.3 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.
As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services or a threat to the safety of persons or property, shall be promptly removed from performance of any Services under this Agreement by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Matt Ospital.
5.3.1 City’s Representative. The City hereby designates Yvonne Kimball, City Manager or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.3.2 Consultant’s Representative. Consultant hereby designates Matthew Ospital, or his designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s 185 of 242 185 of 242
7 Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
5.4 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
5.5 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful, competent and customary manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the same region, and performing similar services as defined by this Agreement. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Consultant and shall not be re-employed to perform any of the Services.
5.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures.
Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
Any subcontract entered into as a result of this Agreement, shall contain all of the provisions of this Section.
6. INSURANCE.
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8 6.1 Time for Compliance. Consultant shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
6.2 Types of Required Coverages. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder and without limiting the indemnity provisions of the Agreement, the Consultant in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance.
6.2.1 Commercial General Liability. Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, with minimum limits of at least $1,000,000 per occurrence. Defense costs shall be paid in addition to the limits.
The policy shall contain no endorsements or provisions limiting coverage for (1) products and completed operations; (2) contractual liability; (3) third party action over claims; or (4) cross liability exclusion for claims or suits by one insured against another.
6.2.2 Automobile Liability. Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1) with minimum limits of $1,000,000 each accident.
6.2.3 Workers’ Compensation. Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
6.2.4 Professional Liability. Professional Liability insurance for errors and omissions with minimum limits of $1,000,000. Covered Professional Services shall specifically include all work to be performed under the Agreement.
If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.
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9 6.3 Endorsements.
6.3.1 The policy or policies of insurance required by Sections 6.2.1 Commercial General Liability and 6.2.2 Automobile Liability shall be endorsed to provide the following:
6.3.1.1 Additional Insured. The City, its officials, officers, employees, agents and volunteers shall be additional insureds. The Commercial General Liability policy shall give City, its officials, officers, employees, agents and volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
6.3.1.2 Primary Insurance and Non-Contributing Insurance. This insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents and volunteers shall not contribute with this primary insurance.
6.3.1.3 Waiver of Subrogation. The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.1.4 Severability. In the event of one insured, whether named or additional, incurs liability to any other of the insureds, whether named or additional, the policy shall cover the insured against whom claim is or may be made in the same manner as if separate policies had been issued to each insured, except that the limits of insurance shall not be increased thereby.
6.3.1.5 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.1.6 Duties. Any failure by the named insured to comply with reporting provisions of the policy or breaches or violations of warranties shall not affect coverage provided to the indemnified parties.
6.3.1.7 Applicability. That the coverage provided therein shall apply to the obligations assumed by the Consultant under the indemnity provisions of the Agreement, unless the policy or policies contain a blanket form of contractual liability coverage.
6.3.2 The policy or policies of insurance required by Section 6.2.3 Workers’ Compensation shall be endorsed, as follows:
6.3.2.1 Waiver of Subrogation: The insurance shall contain or be endorsed to contain a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in 188 of 242 188 of 242
10 compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6.3.2.2 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.3.3 The policy or policies of insurance required by Section 6.2.4 Professional Liability shall be endorsed, as follows:
6.3.3.1 Cancellation. The policy shall not be canceled or the coverage suspended, voided, reduced or allowed to expire until a thirty (30) day prior written notice of cancellation has been served upon the City except ten (10) days prior written notice shall be allowed for non-payment of premium.
6.4 Deductible. Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
6.5 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least ten (10) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
6.6 Failure to Maintain Coverage. Consultant agrees to suspend and cease all operations hereunder during such period of time if the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Agreement.
In the event that the Consultant’s operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Work because of production lost during suspension.
6.7 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A-:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 189 of 242 189 of 242
11 6.8 Insurance for Subconsultants. All subconsultants shall be included as additional insureds under the Consultant’s policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured to the subconsultant’s policies.
7. OWNERSHIP OF MATERIALS AND CONFIDENTIALITY.
7.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City's express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of four (4) years following completion of the Agreement, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
7.1.1 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
7.1.2 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Agreement or any project, provided that any such use not within the purposes intended by this Agreement without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than a project for which Services are rendered under this Agreement, it shall remove the Consultant’s seal from the Documents & Data. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any 190 of 242 190 of 242
12 revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant, or for the use of Documents & Data on any other project by City.
7.1.3 Electronic Copies. Consultant shall provide electronic copies of the finished products in the original software format at the conclusion of the respective phases of work.
Complex documents such as reports that utilize more than one type of software shall also be provided in a common format such as Adobe Acrobat (*.pdf). Files of construction drawings shall be provided in a current version of AutoCAD. The Consultant shall archive and maintain copies of all electronic copies of Documents and Data provided to the City. Any claim arising from the use, unintended use, reuse or modifications made of the electronic copies shall be settled by the copies maintained by the Consultant.
7.2 Confidentiality. All Documents & Data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant.
All Documents & Data shall not, without the prior written consent of City or except pursuant to court order, be used or reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of the Documents & Data to any person or entity not connected with the performance of the Services. Nothing furnished to Consultant that is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
7.3 Indemnification. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use under this Agreement by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
8. ACCOUNTING RECORDS.
8.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
8.2 Retention of Records/Audit. For the purpose of determining compliance with Public Contract Code Section 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection all books, documents, papers, accounting records, and 191 of 242 191 of 242
13 other evidence pertaining to the performance of the Agreement, including but not limited to, the costs of administering the Agreement. All Parties shall make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under the Agreement. The state, State Auditor, City, Federal Highway Administration, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to the Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.
8.3 Audit Review Procedures.
8.3.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by City.
8.3.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by City of unresolved audit issues. The request for review will be submitted in writing.
8.3.3 Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.
8.3.4 Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by City to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
8.3.5 Consultant Cost Proposal is subject to a CPA ICR Audit Work Paper Review by Caltrans’ Audit and Investigation (Caltrans). Caltrans, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City’s Representative to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
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14 8.3.5.1 During a Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each Party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at a provisional ICR until a FAR compliant ICR {e.g. 48 CFR, part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials Audit Guide; and other applicable procedures and guidelines}is received and approved by A&I. Provisional rates will be as follows:
8.3.5.1.1 If the proposed rate is less than 150% - the
provisional rate reimbursed will be 90% of the
proposed rate.
8.3.5.1.2 If the proposed rate is between 150% and 200% - the provisional rate will be 85% of the proposed rate.
8.3.5.1.3 If the proposed rate is greater than 200% - the provisional rate will be 75% of the proposed rate.
8.3.5.2 If Caltrans is unable to issue a cognizant letter per paragraph 8.3.5.1. above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
8.3.5.3 If the Consultant fails to comply with the provisions of this Section E, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA-audited ICR is submitted, overhead cost reimbursement will be limited to the provisional ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this provisional ICR will become the actual and final ICR for reimbursement purposes under this Agreement.
8.3.5.4 Consultant may submit to City final invoice only when all of the following items have occurred: (1) Caltrans approves or rejects the original or revised independent CPA-audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) Caltrans has issued its final ICR review letter. The Consultant MUST SUBMIT ITS FINAL INVOICE TO City no later than 60 days after occurrence of the last of these items.
The provisional ICR will apply to this Agreement and all other contracts executed between City and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.
8.4 Inspection of Work. Consultant and any subconsultant shall permit City, the state, and the Federal Highway Administration if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.
9. SUBCONTRACTING.
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15 9.1 Prior Approval Required. City recognizes Consultant, in performance of engineering services set forth herein, will subcontract portions of the work related to the fulfillment of this Agreement. Consultant shall obtain prior written approval of CITY for any subcontract.
All subcontracts, if any, shall be accomplished by a written instrument. Such instrument shall contain an express assumption by the subcontractor of all conditions and terms and covenants contained in this Agreement. Appurtenant professional services may but are not limited to include:
A. Transportation and Traffic Engineering
B. Structural Engineering
C. Surveying
D. Geotechnical Investigation
E. Environmental Investigation and Report Preparation and Mitigation Monitoring
F. Hydraulic Analysis
G. Electrical Engineering
H. Right of Way Appraisal & Acquisition
I. Landscape Architecture
J. Soil and Materials Testing
K. Specialty Construction Inspection (Welding, Coatings, etc.) L. Labor Compliance Verification
Consultant will utilize DBE and UDBE subconsultants to meet annual DBE goals of City.
9.2 Subcontracting. Nothing contained in this Agreement or otherwise, shall create any contractual relation between City and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from City’s obligation to make payments to the Consultant.
Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by City’s Representative, except that, which is expressly identified in the approved Cost Proposal.
Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by City.
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16 Any substitution of subconsultant(s) must be approved in writing by City’s Representative prior to the start of work by the subconsultant(s).
10. TERMINATION OF AGREEMENT.
10.1 Grounds for Termination. City reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant with the reasons for termination stated in the notice. City may terminate this contract with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, City may proceed with the work in any manner deemed proper by City. If City terminates this contract with Consultant, City shall pay Consultant the sum due to Consultant under this contract prior to termination, unless the cost of completion to City exceeds the funds remaining in the Agreement. In which case the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. The maximum amount for which the City shall be liable if this Agreement is terminated is the lesser of the reasonable value of unpaid Services rendered prior to termination or $50,000.
Consultant may not terminate this Agreement except for cause.
10.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) calendar days of the request.
10.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
11. GENERAL PROVISIONS
11.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose:
City:
City of Jackson
33 Broadway
Jackson, CA 95642
Attn: City Manager
Consultant:
Weber, Ghio & Associates, Inc.
P.O. Box 251
394 East St. Charles Street
San Andreas, CA 95249
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17 Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
11.2 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
11.3 Laws and Regulations; Employee/Labor Certifications. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, officers, employees, and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
11.3.1 Employment Eligibility; Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related 196 of 242 196 of 242
18 to Consultant’s compliance with the requirements provided for in Section 11.3 or any of its subsections.
11.3.2 Employment Eligibility; Subcontractors, Consultants, Sub-subcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 11.3.1.
11.3.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-subcontractors or subconsultants to meet any of the requirements provided for in Sections 11.3.1 or 11.3.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section 11.3.2); or (3) failure to immediately remove any person found not to be in compliance with such requirements.
11.3.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (“CARB”). Consultant shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
11.4 Prohibited Interests.
11.4.1 Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
11.4.2 Consultant shall disclose any financial, business, or other relationship with City that may have an impact upon the outcome of this Agreement, or any ensuing City 197 of 242 197 of 242
19 construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing City construction project, which will follow.
11.4.3 Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
11.4.4 To the extent Consultant performed any services related to any federally funded project under separate agreement with City, and Consultant now intends to perform any construction administration for such projects under the terms of this Agreement, Consultant agrees as follows:
11.4.4.1 Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this Agreement.
An affiliated firm is one, which is subject to the control of the same persons through jointownership, or otherwise.
11.4.4.2 Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this Agreement shall have provided services on the design of any project included within this Agreement.
11.4.5 Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this Agreement is also employed by the construction contractor for any project included within this Agreement.
11.5 Contingent Fee. Consultant warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this Agreement without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
11.6 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects.
If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of 198 of 242 198 of 242
20 apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Agreement term and require the same of any subconsultants, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
11.7 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
11.8 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California 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 agrees to comply with such provisions before commencing the performance of the Services.
11.9 Attorneys’ Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.
11.10 Assignment or Transfer. Consultant shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
11.12 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
11.13 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
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21 11.14 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties.
11.15 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Amador County. In addition to any and all Agreement requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
11.16 Time of Essence. Time is of the essence for each and every provision of this Agreement and Consultant agrees to provide Services with due and reasonable diligence consistent with sound professional practices to endeavor to meet the project schedule.
11.17 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days.
All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various sections and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
11.18 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
11.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
11.20 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
11.21 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.22 City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Agreement.
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22 11.23 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
11.24 Federal Provisions. When funding for the Services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (Federal Requirements) attached hereto and incorporated herein by reference. With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
11.25 Cost Principles and Administrative Requirements. Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items for federal aid projects.
Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements For Federal Awards.
Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to City.
11.26 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discretion; to terminate the Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
11.27 Prohibition of Expending City, State, or Federal Funds for Lobbying.
11.27.1 Consultant certifies to the best of his or her knowledge and belief that:
11.27.1.1 No state, federal or local agency appropriated funds have been paid, or will be paid by-or-on behalf of Consultant to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement.
11.27.1.2 If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee 201 of 242 201 of 242
23 of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; Consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.
11.27.1.3 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
11.27.1.4 Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
11.28 Statement of Compliance.
11.28.1 Consultant’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.
11.28.2 During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (af) et seq.) and the 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
11.28.3 The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
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24 11.28.4 The Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment.
11.29 Debarment and Suspension Certification. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (non-procurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to City.
Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.
Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal Highway Administration.
11.30 Funding Requirements. It is mutually understood between the Parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both Parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to City for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City Council that may affect the provisions, terms, or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds.
City has the option to void the Agreement under the 30-day termination clause pursuant to Section 10, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
11.31 Disadvantaged Business Enterprises (DBE) Participation. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who obtain DBE participation on this Agreement will assist Caltrans in meeting its federally mandated statewide overall DBE goal.
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25 The goal for DBE participation for this Agreement is 32%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as City deems appropriate.
Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section.
A DBE firm may be terminated only with prior written approval from City and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the termination, Consultant must meet the procedural requirements specified in 49 CFR 26.53(f).
A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors.
A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of the contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
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26 Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), FirstTier Subconsultants” CEM-2402F [Exhibit 17-F, of the LAPM], certified correct by Consultant or Consultant’s authorized representative and shall be furnished to the City’s Representative with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to Consultant when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the City’s Representative.
If a DBE subconsultant is decertified during the life of the contract, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the contract, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to City’s Representative within 30 days.
11.32 Disputes.
11.32.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City’s Representative and another City staff member to be designated by City when the dispute arises, who may consider written or verbal information submitted by Consultant.
11.32.2 Not later than 30 days after completion of all work under the Agreement, Consultant may request review by the City Council of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
11.32.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.
11.33 Construction Contractor Claims. If claims are filed by City’s construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
Consultant’s personnel that City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from City. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement.
Services of Consultant’s personnel in connection with City’s construction contractor claims will be performed pursuant to a written amendment, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
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27 11.34 Provisions Required By Law or Funding. Each and every provision required by the funding source of this Agreement or other applicable law to be includes within this Agreement, including by way of illustration and not by limitation, those provisions required by Chapter 10 of the Local Assistance Procedures Manual published by Caltrans (“LAPM”), shall be deemed inserted herein as if fully set forth herein and the Agreement shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party the Agreement shall forthwith be physically amended to make such insertion or correction retroactively effective as of the first date this Agreement was entered into. LAPM Exhibit 10-R is incorporated herein by reference to the extent necessary to comply with the requirements of the funding source of this Agreement or other applicable law.
[SIGNATURES ON NEXT PAGE]
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28 SIGNATURE PAGE
TO
CITY OF JACKSON
AGREEMENT FOR CITY FEDERALLY FUNDED
ENGINEERING CONSULTING SERVICES
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
CITY OF JACKSON Weber, Ghio & Associates, Inc.
By: ___________________________ By: ___________________________ City Manager President
Attest:
By: ___________________________
City Clerk
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A-1
EXHIBIT “A”
SCOPE OF SERVICES
The plans, specifications, and estimate (PS&E) prepared by TJKM, the City’s design consultant for the State Route 49 Lighting Project, is currently 65% completed. WGA will review TJKM’s 90% PS&E package and provide written responses to the City. At 100% PS&E, WGA will assist the City with the bidding process by preparing any necessary project addendums, reviewing DBE commitments, and taking the project to City Council for Award.
WGA would provide construction management services for the construction phase of the project.
This work would include the following:
• Preparing Caltrans Award Package
• Provide full time project inspector
• Provide Resident Engineer services
• Coordination with City and property owners
• Reviewing project submittals, preparing contract change orders, processing progress payments and meeting with the City as needed.
• Project closeout
Project deliverables for each phase of work are as follows:
1. Design
90% Design Review Letter
2. Construction Management
Electronic & Paper Files
Inspection/Resident Engineer Binder
Red Lined Asbuilt Drawings
To meet major project time constraints, some specialty services are subcontracted. In this manner a broad range of professional services can be provided for large or complex projects without incurring unnecessary overhead costs. Having a local team with offices in San Andreas and Sutter Creek, that has a large history with this project, will help keep project costs down and on budget.
WGA is very familiar with Caltrans District 10 staff and federal aid process. Our deliverables, contracts, and invoicing are always prepared to meet Caltrans Local Assistance requirements. This makes reimbursement, construction authorizations, and project closeout efficient for the City to administer.
Timely delivery of projects administered through Caltrans District 10 is driven by understanding of and compliance with the processes and procedures that must be followed when using federal and state funding.
The plans are approximately 65% complete and the critical design issue is getting PG&E to work on a plan for providing power as soon as possible. WGA has coordinated with the appropriate PG&E staff and is currently awaiting additional funding required to continue this important project. There are no critical environmental issues. The project requires minimal ground disturbance. WGA believes the schedule can 208 of 242 208 of 242
A-2
be minimized by moving forward with PG&E design. The cost could be minimized by eliminating the proposed streetlight between French Bar Road and Clinton Road as the proposed power source for it is across the Highway.
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B-1
EXHIBIT “B”
All invoicing shall be in accordance with 48-CFR and 49-CFR, Part 18.20; FAR Compliant Indirect Cost Rates and Direct Costs.
See the following 10-H forms for Rate Schedule information. 210 of 242 210 of 242
B-2
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B-3
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B-4
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B-5
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B-6
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B-7
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B-8
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B-9
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C-1
EXHIBIT “C”
FEDERAL PROVISIONS
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C-2
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C-3
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#1302
City of Jackson Projects - Status Memo 2022-10-10.doc
CITY OF JACKSON
MEMORANDUM
TO: Yvonne Kimball, City Manager
FROM: Matt Ospital, City Engineer
RE: Bridge Project Status Update
DATE: October 10, 2022
WGA was recently awarded a five-year contract to continue working on the City’s federal aid projects, and are excited to continue the working relationship with the City. The following is a status on the Federal Aid projects WGA is currently working on:
1. French Bar Bridge Replacement Project – PS&E (Plans, Specifications and Estimates) is currently 95% complete, and right of entry’s need to be obtained from the affected property owners. The City requested funding from Caltrans, currently waiting to hear back on the approval of construction funding. Construction anticipated in 2023.
2. Pitt Street Bridge Replacement Project – PS&E is currently 65% complete.
Construction is anticipated in 2024.
3. South Avenue Bridge Replacement Project – PS&E is currently 35% complete.
Construction is anticipated in 2025.
4. Street Light Grant (Hwy 49) – The environmental work is completed.
Consultant is preparing Right of Way certification for Caltrans and WGA has submitted 65% plans to the Caltrans Encroachment permit department. WGA requested an additional $100,000 from Caltrans for construction based on the consultant’s engineers estimate and it has been approved by Caltrans.
Construction anticipated in 2023.
Item #8a Federal aid project updates.
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Item 8a1
1 CITY OF JACKSON
MEMORANDUM
TO: Yvonne Kimball, City Manager
FROM: Matt Ospital, City Engineer
RE: Pitt Street Bridge - Project Update
DATE: October 10, 2022
Project History
Every two years, the Pitt Street Bridge along with other bridges within the City, County and State are inspected by Caltrans. An inspection report is generated discussing the findings which includes maintenance recommendations and a sufficiency rating on a scale of 0 to 100. In June 2010, the Pitt Street Bridge was inspected with a sufficiency rating of
22.5 and was considered “structurally deficient.”
In January of 2011, the City requested funding from the Federal Highway Administration (FHWA) through Caltrans for design and replacement of the Pitt Street Bridge as it was eligible for 100% federal reimbursement due to the sufficiency rating being less than 50.
In April of 2012, the City received design funding to begin preliminary engineering and begin the necessary environmental studies required for a federally funded project, which included CEQA and NEPA compliance.
In August of 2012, the City’s bridge engineering design consultant prepared a feasibility study identifying that it would be more cost effective to replace the existing bridge then to rehabilitate the existing bridge.
In February 2015, the City adopted the CEQA Initial Study Mitigated Negative Declaration for the project which recommended removing the existing bridge and storing at the City corporation yard for a future project and replacing the bridge with a cast in place prestressed concrete slab bridge. Notice of the CEQA document was published in the Amador Ledger Dispatch in December 2014 and was also available on the City’s website. The general public had a 30-day public comment period from January 9, 2015 to February 9, 2015. Comments could also have been provided during the City Council meeting on February 10, 2015. I am not aware of the City receiving any comments suggesting to rehabilitate the existing bridge.
Scope of Work
WGA’s scope of work is to provide 100% project plans and specifications (including oversight for environmental work, bridge structural design and right of way acquisition) and provide construction management services to project closeout. The project is currently 65% complete
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Item 8a2
2 Design Work Remaining
• Respond to Caltrans 65% plan comments
• Complete Right of Way Acquisition
• Complete 100% Plans, Specifications, and Estimate
Options Moving Forward
1. Refurbish Existing Bridge:
Remove existing asphalt concrete overlay and replace the wooden planks and timbers. Stop work on current concrete bridge design.
2. Rehabilitate Existing Bridge:
Remove existing asphalt concrete overlay and rehabilitate the existing bridge by replacing the bridge abutments, retrofitting and cleaning/painting of steel superstructure/members, overhaul the pedestrian railing, entire replacement of the timber stringers and deck. Stop work on current concrete bridge design.
3. Bridge Replacement:
Continue with current concrete bridge design with mitigation measures for abutments and railing.
Table 1: Bridge Comparison Matrix
Option #1 Option #2 Option #3
Additional Environmental Consultation No Yes No
Engineering Redesign Yes Yes No
Increase Creek Hydraulics (opening) No No Yes
Increased Load Rating No Yes Yes
Long Term Maintenance Most Less
Noise Level More More N/A
Utility Upgrades (water and sewer) No Yes Yes
Future Federal Funding Available No Yes Yes
Payback Federal Funds Yes Unknown No
Recommendation
Continue with the current City approved project of replacing the existing bridge with a new concrete bridge. This option has already cleared environmental hurdles and will produce a bridge that requires less maintenance. WGA doesn’t recommend the Option #1 as Caltrans Local Assistance has indicated there is a 95% chance that the funds expended would need to be paid back to the Feds.
Assuming federal construction funding is available, construction is anticipated in 2024, #2377
2022-10-10 - Pitt Street Bridge - Status Memo
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City of Jackson
City Council Meeting Memorandum
Monday, October 10, 2022 – 7:00 PM
To: Honorable Mayor and Council
From: Yvonne Kimball, City Manager
Date submitted: October 5, 2022
Agenda Item 8b1: Sutter St. Stormwater Drainage Situation Recommendation:
That the Council receive the update and provides necessary direction Summary and Discussion:
Substantial discussion and public participation took place in 2021 regarding Sutter St. Extension.
In May 2021, City decided on a roundabout concept. Attachment 1 is the chosen concept.
In October 2021, City engaged GHD consultants to perform the engineering design and environmental work. Attachment 2 is a task list and tentative project schedule. The design and environment work has progressed to a point that the Consultant can provide an informative update.
This project is funded by ACTC’s regional fund. At this point of the design phase, the construction cost is estimated at around $10 million. We are hoping to seek grant fund with the potential local matching.
Attachments:
1. Sutter St. Ext. preliminary concept
2. Design & Environmental tasks and schedule
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Item 8b1
Alternative 3a | Roundabout Controlled (Location 2)
SUTTER STREET EXTENSION PROJECT l GHD
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ID Task Name Duration Start Finish % Complete
1 Notice to Proceed 0 days Fri 10/1/21 Fri 10/1/21 100% 2 Task 1 - Project Management and QA/QC 288 days Fri 10/1/21 Wed 11/30/22 80% 3 Project Management 288 days Fri 10/1/21 Wed 11/30/22 80% 4 Project Progress Meetings 288 days Fri 10/1/21 Wed 11/30/22 80% 5 QA/QC 288 days Fri 10/1/21 Wed 11/30/22 80%
6 Task 2 - Outreach & Coordination 337 days Fri 10/8/21 Thu 2/23/23 82% 7 Agency/Stakeholder Coordination 200 days Fri 10/8/21 Tue 8/2/22 80% 12 Utility Coordination 4 mons Fri 11/12/21 Thu 3/17/22 100% 13 Planning Commission Meetings 75 days Mon 10/24/22 Wed 2/15/23 0% 17 City Council Meetings 79 days Tue 10/25/22 Thu 2/23/23 25% 21 Public Meeting 1 day Mon 11/14/22 Mon 11/14/22 0%
22 Task 3 - Survey & Mapping 223 days Fri 10/1/21 Fri 8/26/22 90% 23 Wetland Delineation 78 days Fri 10/1/21 Mon 1/31/22 100% 24 Mapping, Permitting and Delineation 15 days Fri 10/1/21 Thu 10/21/21 100% 25 Report Preporation 63 days Fri 10/22/21 Mon 1/31/22 100% 26 Arborist Tree Report 15 days Mon 8/8/22 Fri 8/26/22 4% 27 Topographic Survey 25 days Fri 10/8/21 Thu 11/11/21 100% 28 Right of Way Engineering 25 days Fri 10/8/21 Thu 11/11/21 100% 29 Task 4 - Preliminary Technical Documentation 258 days Fri 10/8/21 Mon 10/24/22 67% 30 Geotechnical Memorandum 30 days Thu 12/16/21 Fri 2/4/22 100% 31 Agency Review 15 days Mon 2/7/22 Mon 2/28/22 100%
32 Initial Site Assessment (ISA) 225 days Fri 10/8/21 Wed 9/7/22 42% 39 Hydraulic Memorandum 40 days Mon 7/25/22 Mon 9/19/22 38% 40 Draft Hydraulic Memorandum 15 days Mon 7/25/22 Fri 8/12/22 100% 41 Agency Review 15 days Mon 8/15/22 Fri 9/2/22 0%
42 Final Hydraulic Memorandum 10 days Tue 9/6/22 Mon 9/19/22 0% 43 Traffic Operations & VMT Memorandum 86 days Mon 11/15/21 Mon 3/28/22 100% 47 Preliminary Structural Design/Type Selection 50 days Mon 8/15/22 Mon 10/24/22 69% 48 Draft Memorandum 18 days Mon 8/15/22 Thu 9/8/22 100% 49 Agency Review 15 days Fri 9/9/22 Thu 9/29/22 100%
50 Final Memorandum 15 days Tue 10/4/22 Mon 10/24/22 0% 51 Task 5 - Preliminary Engineering 143 days Fri 4/1/22 Mon 10/24/22 82% 52 30% Plans & Estimate 93 days Fri 4/1/22 Fri 8/12/22 100% 57 Agency Review 25 days Mon 8/15/22 Mon 9/19/22 60%
58 Preliminary Landscape Concept 15 days Tue 9/20/22 Mon 10/10/22 50% 59 Agency Review 10 days Tue 10/11/22 Mon 10/24/22 0%
60 Preliminary Estimate 10 days Mon 8/1/22 Fri 8/12/22 100% 61 Finalize 30% Plans and Landscape 25 days Tue 9/20/22 Mon 10/24/22 70% 62 Task 6 - Environmental 310 days Fri 11/12/21 Tue 2/21/23 69% 63 Cultural Resources Report 189 days Tue 2/1/22 Fri 10/28/22 74% 67 Biological Resources Report 232 days Fri 11/12/21 Fri 10/21/22 73% 71 Air Quality/Greenhouse Gas Study 121 days Mon 5/2/22 Fri 10/21/22 87% 75 Noise and Vibration Study 180 days Mon 2/7/22 Fri 10/21/22 93% 79 Visual Simulations 20 days Tue 9/6/22 Mon 10/3/22 100% 80 Initial Study/Mitigated Negative Declaration 76 days Fri 8/26/22 Wed 12/14/22 35% 81 Admin Draft ISMND 30 days Fri 8/26/22 Fri 10/7/22 90% 82 Agency Review 10 days Mon 10/10/22 Fri 10/21/22 0%
83 Screencheck Draft ISMND 3 days Mon 10/24/22 Wed 10/26/22 0% 84 Agency Review/Approval 5 days Thu 10/27/22 Wed 11/2/22 0% 85 Draft ISMND 5 days Thu 11/3/22 Wed 11/9/22 0%
86 Public Circulation (30 day public review) 23 days Thu 11/10/22 Wed 12/14/22 0% 87 Notice of Intent and State Clearinghouse 1 day Thu 10/27/22 Thu 10/27/22 0% 88 Response to Comments, MMRP, and NOD 42 days Thu 12/15/22 Tue 2/21/23 0% 89 Draft Final MND 10 days Thu 12/15/22 Thu 1/5/23 0%
90 Agency Review 10 days Fri 1/6/23 Thu 1/19/23 0%
91 Final MND 5 days Fri 1/20/23 Thu 1/26/23 0%
92 Adopt MND and Approve Project 1 day Mon 2/13/23 Mon 2/13/23 0% 93 File NOD 5 days Tue 2/14/23 Tue 2/21/23 0%
94 Permitting Technical Memorandum 10 days Fri 10/14/22 Thu 10/27/22 0% 95 Agency Review 20 days Fri 10/28/22 Mon 11/28/22 0%
96 Rare Plant Surveys 87 days Mon 4/4/22 Fri 8/5/22 100% 100 Task 7 - Hazardous Waste 147.5 days Fri 10/22/21 Wed 6/1/22 83% 103 Task 8 - Waterline Design 95 days Thu 6/2/22 Mon 10/17/22 92% 104 Preliminary Engineering & Estimate 50 days Thu 6/2/22 Fri 8/12/22 100% 105 Agency Review 20 days Mon 8/15/22 Mon 9/12/22 100%
106 Finalize 30% Waterline Design 25 days Tue 9/13/22 Mon 10/17/22 70% 10/1
Public Meeting
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E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E B M E September October November December January February March April May June July August September October November December January February March April Project Schedule
Sutter Street Extension - PA/ED Phase
1 of 1 Updated Wed 10/5/22
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Item 8b3
DATE: October 3, 2022
TO: Honorable Mayor and City Council
FROM: Yvonne Kimball, City Manager
PREPARED BY: Lorie Ann Adams, Adams Ashby Group
SUBJECT: State Community Development Block Grant (CDBG) CV 2/3 Funding Contract Amendment
RECOMMENDATION
1. Hold the public hearing, receive comments from the public;
2. Adopt the Resolution 2022- xx authorizing the submission, signatory and approval of the contract amendment as follows:
Amendment to approve the change in the contract scope of work to place funds for the Roof Repair Project Phase II for the Community Center to an amount up to $270,000.
BACKGROUND
The City of Jackson received funding under the CDBG CV 2/3 program to implement a Subsistence Payment Program in an effort to respond to the continued needs of the low/moderate income families in the City impacted by the COVID Pandemic. The City of Jackson staff worked diligently to implement a program that provided subsidies to the water, sewer, power, garbage and cable/internet obligations for a period of three months. After multiple marketing attempts, and direct outreach the city exhausted their applications and funded a total of four households. The City has determined the need for the program was less than anticipated and would like to move the funding to the City Community Center Roof Repair Project as it was value engineered to reduce the budget and all phases were not completed. This will allow the City to complete the project and have the roof repairs be complete and ready for the center to open and provide additional services to community members who meet the required national objective.
The amendment is proposed as follows:
Activity: $226,859.42
General Administration: $29,295.60
Total $256,155.02
ALTERNATIVES
1. Not approve and provide direction to staff
2. Return funds to the State
FISCAL IMPACT
None, costs to implement the project and manage the contract with the state are covered by the funding provided. The funding outlined above includes all General Administration and Activity Costs.
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Item 8c1
PUBLIC NOTIFICATION
A Public Notice was published and posted in accordance with the Federal, State and local requirements.
ATTACHMENTS
1. Draft Resolution
2. Public Hearing Notice
3. CDBG Amendment CV2/3
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City of Jackson
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Jackson will conduct a Public Hearing at 7 p.m., or soon thereafter, on October 10, 2022 in the Amador Board of Supervisors Chambers, 810 Court St., Jackson, CA 95642. The teleconference information is:
Public Teleconference Line: 1-650-419-1505
Meeting ID: 261939360
Join from PC, Mac, Linux, iOS or Android: https://v.ringcentral.com/join/261939360 The hearing is to consider the following item:
SUBJECT:
Discuss possible re-allocation(s) of funding for State Community Development Block Grant (CDBG) CV 2/3 Funding made available through the CARES Act. The purpose of this hearing is to review the program and to solicit citizen input on activities to be included in the re-allocation of the funding.
The California Department of Housing and Community Development (Department) provided the availability of approximately $77.1 million in funding pursuant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law March 27, 2020. The funding allocation included funds from CV1, CV2 and CV 3 allocations received by the State of California Department of Housing and Community Development CDBG program. The City has funds remaining in the CV 2/3 program that needs to be reallocated.
The City of Jackson anticipates submitting a change to the allocation under this award including activity, activity delivery and general administration costs. Consideration is being given to the following:
• Reduce funding in the Subsistence Payment Program - $266,335 • Increase funding to the Roof Project – remaining balance of the Subsistence Payment Program approximately $260,000.
The purpose of this public hearing is to give citizens an opportunity to make their comments known regarding what types of activities that are being considered for the amendment or other comments regarding the funding.
Any member of the public may appear or virtually participate in the meeting and be heard on the item described in this notice, or members of the public may submit written comments to the City Clerk prior to the meeting by personal delivery or by mail to: City Clerk’s Office, 33 Broadway, Jackson CA 95642.
If you require special accommodations to participate in the public hearing, please contact the Clerk’s office at least 48 hours in advance of the meeting by calling 209-223-1646 x124. If you are unable to attend the public hearing, you may direct written comments to the City of Jackson, Attention: Jeanette Menzies, [email protected]. Your comments will be read at the meeting.
For More Information:
If you have any questions or would like more information regarding the item described in this notice, please call Yvonne Kimball at 209-223-1646 x 101 or email [email protected]. The State Action Plan Substantial Amendment for the CARES Act funding may be accessed at: https://www.hcd.ca.gov/policy-research/plansreports/index.shtml#aap. State CDBG NOFA’s can be accessed at: https://www.hcd.ca.gov/grantsfunding/active-funding/cdbg.shtml. 230 of 242 230 of 242
Item 8c2
CA HCD Revision / Amendment Request Form
CA HCD Revision / Amendment Request Form
Please complete the form below to request revisions or amendments to your CDBG-CV Standard Agreement under California Department of Housing and Community Development guidelines. A separate form must be completed for each agreement/award.
Part 1: Requested Revision / Amendment for:
Award Number:
Contractor/Grantee:
Grant Administrator (CDBG-CV) OR
CDBG Representative (Annual CDBG):
Person Completing Form:
Complete the Part 2: Contract Revisions and/or Part 3: Amendments sections below.
Remember, revisions do not require a new Standard Agreement, while amendments do.
Part 2: Contract Revisions
Choose revision types (Scope of Work, Timeline or Milestone, Beneficiaries or Other) and complete entries for those revisions. Revisions MAY NOT be implemented prior to execution unless CA HCD has provided written notice to proceed. Scope of Work Revision (Choose Itemize the Scope of Work and/or Change the Scope of Work)
Itemize the Scope of Work
Original Scope of Work: Proposed Itemized Scope of Work:
12/7/2021 Page 1
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Item 8c3
CA HCD Revision / Amendment Request Form
Change the Scope of Work in a manner that does not change the overall budget, National Objective, or change activity type and does not reduce the number of estimated beneficiaries. If your request impacts these areas, STOP. You must request an Amendment.
Original Scope of Work: Proposed Scope of Work:
Timeline or Milestone Revision
Proposed revisions may only affect intermediate milestones; they MAY NOT affect start and end dates. An Amendment is required to change start or end date.
Original Milestones: Proposed Milestones:
Beneficiaries Revision
To qualify as a revision, proposed adjustments must increase the estimated number of beneficiaries WITHOUT increasing or decreasing the scope of work and WITHOUT changing the overall budget.
Original Estimated Increased Number
Number of Beneficiaries: of Beneficiaries:
12/7/2021 Page 2
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CA HCD Revision / Amendment Request Form
Other (Please Explain)
Original Item: Proposed Change:
Part 3: Contract Amendment
Include in this section adjustments that change the scope in a manner that requires a change to the awarded activity budget, including adding funds from other State CDBG funded activities, other CDBG-CV allocations, adding Program Income, and reducing funds from either State CDBG awarded funds or Program Income.
Contract Amendments must be fully executed by BOTH the Grantee and the CA HCD prior to implementation. Adjustments MAY NOT be implemented prior to execution unless CA HCD has provided written notice authorizing the Grantee to proceed.
Choose amendment type(s) (Scope of Work, Budget and Scope of Work, Beneficiaries, or Other) and complete entries for these amendments.
Scope of Work Amendment (Choose EITHER Add Scope or Reduce Scope) Add Scope beyond what was included in the original application Original Scope of Work: Proposed Scope of Work:
12/7/2021 Page 3
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CA HCD Revision / Amendment Request Form
Reduce Scope such that the activity is materially different from that in the original application.
Original Scope of Work: Proposed Scope of Work:
Budget and Scope of Work Amendment (Choose Change of Scope requiring adding funds, Change of Scope requiring reducing funds, and/or Budget Change.) Change to the Scope of Work that requires a change to awarded activity budget including ADDING FUNDS from other State CDBG funded activities or other CDBG-CV allocations or adding Program Income. Complete both the scope and budget information below.
Original Scope of Work: Proposed Scope of Work:
Budget Change
Original Scope of Work: Proposed Scope of Work:
Awarded Funds Total Funds Awarded Funds Total Funds
12/7/2021 Page 4
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CA HCD Revision / Amendment Request Form
Change to the Scope of Work that requires a change to awarded activity budget including REDUCING FUNDS from either State CDBG awarded funds or Program Income. Complete both the scope and budget information below.
Original Scope of Work: Proposed Scope of Work:
Budget Change
Original Scope of Work: Proposed Scope of Work:
Awarded Funds Total Funds Awarded Funds Total Funds
Budget change to awarded activity budget including adding funds from other CDBG-CV, CDBG annual funds, or Program Income allocation. If the budget line items (such as activity or activity delivery) are moved WITHOUT increasing or decreasing the overall budget, complete the Revision section instead.
Budget Changes
Original Scope of Work: Proposed Scope of Work:
Awarded Funds Total Funds Awarded Funds Total Funds
12/7/2021 Page 5
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CA HCD Revision / Amendment Request Form
Beneficiaries Amendment
Proposed adjustments should reduce the estimated beneficiary counts. If the number of beneficiaries is being increased WITHOUT increasing or decreasing the scope of work and WITHOUT changing the overall budget, complete the Revision section instead.
Original Estimated
Number of Beneficiaries:
Reduced Number of
Beneficiaries:
Other (Please Explain)
Original Item: Proposed Change:
Amendment Justifications and Assurances
Please include the following information for the proposed amendment.
1. Identify the reasons for the proposed amendment(s).
2. List steps being taken to avoid any future amendment(s) request(s) for the same reason(s).
12/7/2021 Page 6
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CA HCD Revision / Amendment Request Form
Part 4: Grantee Approval and Acknowledgment
I approve the revision or amendment requested above. I acknowledge that if revisions are approved, they will be automatically incorporated into our current Standard Agreement. All other provisions of the agreement shall remain unchanged. I also acknowledge that if an amendment is approved, it must be fully executed by both the Grantee and the Department prior to implementation.
Name of Designated Official: Title of Designated Official:
Signature of Designated Official: Date:
12/7/2021 Page 7
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RESOLUTION NO. 2022-22
A Resolution Approving an Amendment to the Standard
Agreement for the 2020 Community Development Block
Grant Program Coronavirus Response Round 2 and 3
(CDBG-CV2 and CV3) NOFA Dated December 18, 2020
NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Jackson as follows:
SECTION 1:
The City Council has reviewed and hereby approves the submission to the State of California (“State”) of one or more amendments to its existing CDBG-CV2 and CV3 Standard Agreement with the State numbered 20-CDBG-CV2-3-00136 (the “Standard Agreement”) pursuant to the State’s December 2020 CDBG-CV2 and CV3 Notice of Funding Availability (NOFA). The reviewed and approved amendment(s) are presented in Section 2 of this Resolution.
SECTION 2:
The following amendments to the Standard Agreement have been reviewed and approved by the City Council with acknowledgement that all provisions of the Standard Agreement other than those shown in the tables below shall remain unmodified. 238 of 242 238 of 242
Item 8d
Existing Section Reference (if applicable):
Existing Provision:
Subsistence Payment Program $266,335
Total $266,335
Amended Provision:
Subsistence Payment Program $10,179.98
Roof Repair Project $256,155.02
Total $266,335
SECTION 3:
The City acknowledges compliance with all state and federal public participation requirements with respect to the proposed amendments to the Standard Agreement described in Section 2 above.
SECTION 4:
The City hereby authorizes and directs the City Manager, to execute and deliver all applications and/or amendments and act on the City behalf in all matters pertaining to all such applications and/or amendments.
SECTION 5:
If an amendment to the Standard Agreement is approved as contemplated above, the City Manager, is authorized to enter into, execute, and deliver an amendment to the Standard Agreement and any and all other documentation which may be required by the State from time to time for the purposes of this grant.
SECTION 6:
If an amendment to the Standard Agreement is approved, the City Manager or Finance Director, is authorized to sign and submit Funds Requests and all required reporting forms and other documentation as may be required by the State of California from time to time in connection with this grant.
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The foregoing resolution was duly passed and adopted at a regular meeting of the City Council of the City of Jackson held on October 10, 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________________________
Robert Stimpson, Mayor
STATE OF CALIFORNIA
City of Jackson
I, John Georgette, City Clerk of the City of Jackson, State of California, hereby certify the above and foregoing to be a full, true and correct copy of a resolution adopted by said [City Council or Board of Supervisors, as applicable] on this 10th day of October, 2022 . ___________________________________________
John Georgette, City Clerk of the City of Jackson,
State of California
By: _____________________________
Name and Title
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Item 8e
BASE BID: VUKOVICH WAY
$/UNIT TOTAL $/UNIT TOTAL $/UNIT TOTAL $/UNIT TOTAL $/UNIT TOTAL 1 0.2' Mill & Fill SF 25,630 $3.15 $80,734.50 $3.42 $87,654.60 $3.80 $97,394.00 $4.00 $102,520.00 $4.00 $102,520.002 Subbase Rehab SF 500 $2.20 $1,100.00 $7.82 $3,910.00 $8.40 $4,200.00 $2.00 $1,000.00 $31.00 $15,500.003 AC Dike LF 45 $132.00 $5,940.00 $48.26 $2,171.70 $62.00 $2,790.00 $100.00 $4,500.00 $137.00 $6,165.004 Striping & Markings LS 1 $6,000.00 $6,000.00 $6,036.42 $6,036.42 $14,523.00 $14,523.00 $20,000.00 $20,000.00 $7,000.00 $7,000.00 $93,774.50 $99,772.72 $118,907.00 $128,020.00 $131,185.00 ADDITIVE ALTERNATE #1: SCOUT HUT
$/UNIT TOTAL $/UNIT TOTAL $/UNIT TOTAL $/UNIT TOTAL $/UNIT TOTAL 1 2" Overlay SF 19,330 $3.10 $59,923.00 $3.69 $71,327.70 $2.50 $48,325.00 $3.00 $57,990.00 $3.85 $74,420.502 Adjust Iron to Grade LS 1 $17,800.00 $17,800.00 $4,597.53 $4,597.53 $5,845.00 $5,845.00 $5,000.00 $5,000.00 $7,200.00 $7,200.003 Striping & Markings LS 1 $8,200.00 $8,200.00 $4,511.44 $4,511.44 $13,725.00 $13,725.00 $15,000.00 $15,000.00 $5,500.00 $5,500.00 ADDITIVE ALTERNATE #1 TOTALS: $85,923.00 $80,436.67 $67,895.00 $77,990.00 $87,120.50 BASE AND ADDITIVE ALTERNATE TOTALS: $179,697.50 $180,209.39 $186,802.00 $206,010.00 $218,305.50 QTY
CITY OF JACKSON
CITY PAVING PROJECT
BID SUMMARY
BID OPENING: OCTOBER 4, 2022 at 1:30 P.M.
GEORGE REED, INC. DOUG VEERKAMP MACHADO & SON'S CONST. TOM MAYO CONSTRUCTION DIRT DYNASTY, INC.
ITEM DESCRIPTION UNITS QTYITEM DESCRIPTION UNITS
GEORGE REED, INC. DOUG VEERKAMP MACHADO & SON'S CONST. TOM MAYO CONSTRUCTION DIRT DYNASTY, INC. 242 of 242 242 of 242 Item 8e2