1 AGREEMENT BETWEEN THE CITY OF MANTECA AND MARK THOMAS &
COMPANY FOR THE PROVISION OF ENVIRONMENTAL, RIGHT OF WAY
ACQUISITION, AND ENGINEERING SERVICES FOR THE STATE ROUTE 120/UNION ROAD INTERCHANGE PROJECT
This Agreement is made and entered into this ____ day of ________, 2022, by and between the CITY OF MANTECA, a public body, corporate and politic ("City") and Mark Thomas and Company, a California corporation ("Consultant").
RECITALS
WHEREAS, on November 17, 2015, the City Council approved a Professional Services Agreement with Consultant to provide Environmental, Right of Way Acquisition, and Engineering Services for the State Route (SR) 120/Union Road Interchange (IC) project (“Prior Agreement”); and
WHEREAS, on June 7, 2016, the City Council approved Amendment No. 1 to the Prior Agreement to provide grade separated pedestrian and bicycle paths under the freeway ramps, which were not included in the original scope of work for the Prior Agreement; and WHEREAS, on December 22, 2016, the City Council approved Amendment No. 2 to the Prior Agreement, which expanded the scope of work to be performed; and WHEREAS, on March 20, 2018, the City Council approved Amendment No. 3 to the Prior Agreement, which further expanded the scope of work to be performed; and WHEREAS, on March 18, 2019, the City Council approved Amendment No. 4 to the Prior Agreement, which authorized an additional expansion of the scope of work to be performed; and
WHEREAS, on July 20, 2021, the City Council approved Amendment No. 5 of the Prior Agreement to increase the compensation amount and the term of the services to be performed by Consultant; and
WHEREAS, on December 31, 2021, the Prior Agreement expired without being fully performed; and
WHEREAS, the City and Consultant agree that further work is needed to complete the work to be performed under the Prior Agreement, thereby requiring a new agreement between the parties.
AGREEMENT
1. Scope of Services. Consultant shall continue to perform the services originally agreed to in the Prior Agreement and any amendments thereto, copies of which are attached hereto as Exhibits A through (. Said exhibits are further incorporated by reference into this Agreement as if set forth in full. Performance of these services is sometimes referred to herein as “the Project.”
2 2. Work Through City Staff. Consultant shall perform its services pursuant to this Agreement solely through City staff. No communications, information or documentations shall be made directly to any applicant to the City without the prior written consent of the City. This shall not apply to the sole request of information or clarification of information by Consultant from the applicant. All requests shall be noted to City in an expeditious manner.
3. Time of Performance. Consultant’s services will continue upon execution of this Agreement and shall be completed no later than March 31, 2023. Failure to complete services by this date may result in the City withholding progress payments or a reduction of the total compensation due.
4. Compensation. Without additional authorization from the City, compensation to be paid to Consultant shall be as agreed to under the Prior Agreement, which is attached hereto as Exhibit 1 and incorporated herein as if set forth in full. Consultant understands and agrees that it shall not be entitled to any additional payments for any services performed unless otherwise agreed to in writing. Further, Consultant understands and agrees that this amount shall be the sole compensation due Consultant for any work performed after expiration of the Prior Agreement and prior to execution of this Agreement. Payment by City under this Agreement shall not be deemed a waiver of any defects, even if those defects were known to the City at the time of payment.
5. Method of Payment. Consultant shall submit monthly billings to City specifying and describing the work performed during the preceding month. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours expended and by whom, and a description of any reimbursable expenditures. Full payment of each task will only be made at such time as each task is completed.
City shall pay Consultant no later than 30 days after approval of the monthly invoice by City staff. Payments may be delayed by City if Consultant fails to provide services in accordance with the Schedule of Activities, unless the City has provided prior written consent to any delay in the schedule.
6. Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, the term "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the time of execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without the City’s prior written authorization.
7. Termination. This Agreement may be terminated by the City immediately for cause, or by either party without cause upon 15 days’ prior written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination upon submittal of an invoice for same.
8. Ownership of Documents; Confidentiality.
A. All plans, studies, documents, and other writings prepared by and for Consultant, its officers, employees, agents, and subcontractors in the course of implementing this 3 Agreement, except working notes and internal documents, shall become the property of City upon payment to Consultant for such work. City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon written request by City. Consultant shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose.
B. All memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other documents and data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant. These materials shall not, without the City’s prior written consent, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall these materials be disclosed to any person or entity not connected with the performance of services under this Agreement. Nothing furnished to Consultant that is otherwise known to Consultant, or is generally known, or has become known to the related profession shall be deemed confidential. Consultant shall not use City's name or insignia, photographs relating to the Project for which Consultant's services are rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the City’s prior written consent.
9. Consultant's Books and Records.
A. Consultant shall maintain all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City, for a minimum period of three years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement.
B. Consultant shall maintain all records that document performance under this Agreement for a minimum period of three years, or for any longer period required by law, from the date of termination or completion of this Agreement.
C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor, or a designated representative of any of these officers. Copies of such documents shall be provided to City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address specified in Section 16 of this Agreement.
D. Where City has reason to believe that records or documents may be lost or discarded due to the dissolution or termination of Consultant's business, City may, by written request, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to these records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor-ininterest. 4 10. Independent Contractor. In the performance of the work and services required by this Agreement, Consultant shall act as and be an independent contractor and not an agent, or employee of the City. Consultant shall obtain no rights to retirement or other benefits that accrue to City's employees, and Consultant expressly waives any claim it may have to any such rights.
11. Interest of Consultant.
A. Consultant represents that neither it nor any employee has any investment or interest in real property, and shall not acquire any such interest, direct or indirect, within the area covered by this Agreement, or any other source of income, interest in real property, or investment that would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further represents that, in the performance of its duties hereunder, no person having any such interest shall perform any services under this Agreement.
B. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant:
(1) will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation, or counsel independent of the control and direction of the City, or of any City official, other than normal Agreement monitoring; and
(2) possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendation, or counsel. (FPPC Reg. 18700(a)(2).)
12. Professional Ability of Consultant.
A. City is relying upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement.
Consultant shall therefore provide skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise.
B. The primary provider of the services required by this Agreement shall be Matt Brogan, P.E., Project Manager, Principal. A list of other individuals assigned to the Project will be provided to City for its review and approval, and these individuals shall not be replaced without the City’s prior written consent.
13. Compliance with Laws. Consultant shall use the customary standard of care in its profession to comply with all applicable federal, state, and local statutes, codes, ordinances, and regulations.
14. Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance, and approvals that are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any 5 licenses, permits, insurance, and approvals that are legally required of Consultant to practice its profession.
15. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers, from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith), arising out of Consultant’s performance of this Agreement, or Consultant’s failure to comply with any of its obligations contained in this Agreement; excluding, however, any claim arising out of the active negligence or willful misconduct of the City, its officers, agents, employees, or volunteers.
16. Insurance Requirements.
A. Consultant shall maintain the same types and levels of insurance as required under the Prior Agreement for the term of this Agreement.
B. Certificates of Insurance. Consultant shall provide to City certificates of insurance with original endorsements as evidence of the required insurance coverage.
Certificates of insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
17. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Manteca
1001 W. Center Street
Manteca, CA 95337
Attention: Koosun Kim, Deputy Director, Public Works
If to Consultant: Mark Thomas & Company
7300 Folsom Blvd, Suite 203
Sacramento, CA 95286
Attention: Matt Brogan, P.E., Principal
18. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in their entirety by this Agreement.
19. Amendments. This Agreement may be amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
20. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience, and competence of Consultant. Assignments of any or all rights, duties, or obligations of the 6 Consultant under this Agreement will be permitted only with the express written consent of the City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor.
Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay any monies due to any such subcontractor other than as may be required by law.
21. Waiver. Waiver of any breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach or default of the same or any other provision under this Agreement.
22. Severability. If any provision of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
23. Controlling Law; Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California, and any legal action relating to this Agreement shall take place in the Superior Court, County of San Joaquin.
24. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
25. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS, and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation.
26. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy has been signed by both parties.
27. Authority to Enter Agreement. Consultant warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each party warrants to the other that the signatories to this Agreement have the legal power, right, and authority to enter into this Agreement and to bind each party.
28. Prohibited Interests.
A. Consultant warrants that it has not employed or retained any person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement.
Further, Consultant warrants that it has neither paid nor agreed to pay any person, other than a 7 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. For any breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
B. For the term of this Agreement, no member, officer, or employee of City, during the period 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.
29. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, 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.
30. Precedence. In case of conflict between Consultant’s Proposal/Consultant’s attachments and the City’s Agreement/City’s attachments, the City’s Agreement and City’s attachments shall take precedence over Consultant’s proposal/Consultant’s attachments.
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8 TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth in the introductory paragraph on page 1 above.
CITY OF MANTECA: MARK THOMAS & COMPANY:
_________________________________ ___________________________________ Benjamin J. Cantu, (Type name of Consultant/form of organization)* Mayor
ATTEST: By: ___________________________________
(Signature)
_________________________________ ___________________________________ Cassandra Candini-Tilton, (Type name and title)
Director of Legislative Services
COUNTERSIGNED: By: ___________________________________
(Signature)
_________________________________ ___________________________________ Bret Harmon, (Type name and title)
Director of Finance
COUNTERSIGNED: Address: ____________________________
_________________________________ ____________________________ Dawn Cortesi,
Acting Director of Human Resources Telephone: ____________________________ APPROVED AS TO FORM:
L. David Nefouse, City Attorney
By:_________________________________
Carrie Woolley, Deputy City Attorney
Attachments:
Exhibit A – Prior Agreement
Exhibit B – 6HFRQG Amendment to Prior Agreement
Exhibit C – 7KLUGAmendment to Prior Agreement
Exhibit D – )RXUWK Amendment to Prior Agreement
Exhibit E – )LIWK Amendment to Prior Agreement
Mark Thomas & Company, Inc.
Zach Siviglia, President
R. Matt Brogan, Secretary
701 University Avenue, Suite 200
Sacramento, CA 95825
(916) 381-9100
_____________
nature)
ch Siviglia Pr
_________________________________
(Signature)
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