Marysville City Council
January 16, 2024

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

TABLE OF CONTENTS
Page
RECITALS...................................................................................................................................................................... 3 AGREEMENT................................................................................................................................................................. 3 ARTICLE I INTRODUCTION.......................................................................................................................................... 3 ARTICLE II CONSULTANT’S REPORTS OR MEETINGS........................................................................................... 5 ARTICLE III PERFORMANCE PERIOD ........................................................................................................................ 5 ARTICLE IV ALLOWABLE COSTS AND PAYMENTS ................................................................................................ 5 ARTICLE V TERMINATION........................................................................................................................................... 7 ARTICLE VI COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS ........................................................... 8 ARTICLE VII RETENTION OF RECORD/AUDITS........................................................................................................ 9 ARTICLE VIII AUDIT REVIEW PROCEDURES..........................................................................................................10 ARTICLE IX SUBCONTRACTING...............................................................................................................................11 ARTICLE X EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES...................................................12 ARTICLE XI STATE PREVAILING WAGE RATES ....................................................................................................13 ARTICLE XII CONFLICT OF INTEREST.....................................................................................................................16 ARTICLE XIII REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION.............................................17 ARTICLE XIV PROHIBITION OF EXPENDING CITY, STATE, OR FEDERAL FUNDS FOR LOBBYING ...............18 ARTICLE XV NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE.........................................18 ARTICLE XVI DEBARMENT AND SUSPENSION CERTIFICATION.........................................................................19 ARTICLE XVII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION........................................20 ARTICLE XVII INDEMNIFICATION .............................................................................................................................23 ARTICLE XIX INSURANCE.........................................................................................................................................24 ARTICLE XX FUNDING REQUIREMENTS.................................................................................................................24 ARTICLE XXI CHANGE IN TERMS.............................................................................................................................25 ARTICLE XXII CONTINGENT FEE..............................................................................................................................25 ARTICLE XXIIII DISPUTES .........................................................................................................................................25 ARTICLE XXIV INSPECTION OF WORK ...................................................................................................................25 ARTICLE XXV SAFETY...............................................................................................................................................26 ARTICLE XXVI OWNERSHIP OF DATA.....................................................................................................................26 ARTICLE XXVII CLAIMS FILED BY CITY’S CONSTRUCTION CONTRACTOR ......................................................27 ARTICLE XXVIII CONFIDENTIALITY OF INFORMATION.........................................................................................27 ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION ..........................................................28 ARTICLE XXX EVALUATION OF CONSULTANT......................................................................................................29

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
ARTICLE XXXI PROMPT PAYMENT FROM THE CITY TO CONSULTANT.............................................................29 ARTICLE XXXII RECYCLING PROGRAM..................................................................................................................29 ARTICLE XXXIII NOTIFICATION ................................................................................................................................29 ARTICLE XXXIV OTHER PROVISIONS......................................................................................................................30 ARTICLE XXXV CONTRACT ......................................................................................................................................32 ARTICLE XXXVI SIGNATURES..................................................................................................................................32 EXHIBIT A SCOPE OF SERVICES .............................................................................................................................33 EXHIBIT B SCHEDULE OF FEES ...................................................................................................................................39 EXHIBIT C INSURANCE REQUIREMENTS ...............................................................................................................42 EXHIBIT D DISCLOSURE OF CONFLICT OF INTEREST ........................................................................................44 EXHIBIT E APPENDICES A, E OF THE TITLE VI ASSURANCES............................................................................45

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
THIS AGREEMENT is made and entered into, effective when signed by the parties hereto and is, by and between the CITY OF MARYSVILLE, a California municipal corporation (CITY), and NAME OF CONSULTANT, (CONSULTANT), incorporated in the State of (STATE).

RECITALS
WHEREAS, the CITY desires to obtain professional civil engineer and land surveyor services for OnCall Engineering Services (Project); and · WHEREAS, the CONSULTANT is engaged in the business of furnishing services as a professional civil engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this AGREEMENT; and
WHEREAS, this AGREEMENT will be administered for the CITY by its Public Works Director (Director) or designee.

AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:

ARTICLE I INTRODUCTION
A. Scope of Services - The work to be performed under this AGREEMENT is described in Exhibit A Statement of Work and the approved CONSULTANT’s Cost Proposal dated (DATE). The approved CONSULTANT’s Cost Proposal is attached hereto (Exhibit B) and incorporated by reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.

B. Professional Skill - It is mutually understood and agreed by and between the parties hereto that inasmuch as the CONSULTANT represents to the CITY that the CONSULTANT and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this AGREEMENT, the CITY relies upon the skill of the CONSULTANT and any subcontractors to do and perform such services in a skillful manner that meets the standard of quality ordinarily to be expected of competent professionals in the CONSULTANT’s field of expertise, and the CONSULTANT agrees to thus perform the services and require the same of any subcontractors.

Therefore, any acceptance of such services by the CITY shall not operate as a release of the CONSULTANT or any subcontractors from said professional standards.

C. Independent Contractor - In the furnishing of the services provided for herein, the CONSULTANT is acting solely as an independent contractor. Neither the CONSULTANT, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the CITY for any purpose. The CITY shall have no right to control or supervise or direct the manner or method by which the CONSULTANT shall perform its work and functions. However, the CITY shall retain the right to administer this Agreement so as to verify that the CONSULTANT is performing its obligations in accordance with the terms and conditions thereof.

This AGREEMENT does not evidence a partnership or joint venture between the CONSULTANT and the CITY. The CONSULTANT shall have no authority to bind the CITY absent the CITY's

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
express written consent. Except to the extent otherwise provided in this AGREEMENT, the CONSULTANT shall bear its own costs and expenses in pursuit thereof.

Because of its status as an independent contractor, the CONSULTANT and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the CITY employees. The CONSULTANT shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare, and retirement benefits. In addition, together with its other obligations under this AGREEMENT, the CONSULTANT shall be solely responsible, indemnify, defend and save the CITY harmless from all matters relating to employment and tax withholding for and payment of the CONSULTANT's employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers' compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the CITY employment benefits, entitlements, programs and/or funds offered employees of the CITY whether arising by reason of any common law, de facto, leased, or co­ employee rights or other theory. It is acknowledged that during the term of this AGREEMENT, the CONSULTANT may be providing services to others unrelated to the CITY or to this AGREEMENT.

The CITY is not required to make any deductions or withholdings from the compensation payable to the CONSULTANT under the provisions of the AGREEMENT and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. The CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the CITY as to the designation of tasks to be performed and the results to be accomplished.

Any third-party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds the CITY harmless from any and all claims that may be made against the CITY based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.

D. Assignments and Subcontracting - The parties recognize that a substantial inducement to the 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 CONSULTANT under this AGREEMENT will be permitted only with the express prior written consent of the CITY.

CONSULTANT shall not subcontract any portion of the services to be performed under this AGREEMENT without the prior written authorization of the CITY.

If the CITY consents to such a subcontract, the CONSULTANT shall be as fully responsible to the CITY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by the CONSULTANT. Nothing in this AGREEMENT shall create any contractual relationship between the CITY and the subconsultant(s) nor shall it create any obligation on the part of the CITY to pay or to see to the payment of any monies due to any such subconsultant other than as otherwise required by law.

The CONSULTANT agrees not to assign the payment of any monies due to the CONSULTANT from the CITY under the terms of this AGREEMENT to any other individual(s), corporation(s), or entity(ies). The CITY retains the right to pay any and all monies due to the CONSULTANT directly to the CONSULTANT. Notice of any involuntary assignment or transfer shall be furnished promptly

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
to the CITY.

ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. The CONSULTANT shall submit progress reports on each specific project in accordance with a Task Order. These reports shall be submitted at least once a month. The report should be sufficiently detailed for the CITY’s Contract Administrator to determine, if the CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.

B. The CONSULTANT’s Project Manager shall meet with the CITY’s Contract Administrator or as needed, to discuss progress on the project(s).

ARTICLE III PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on (DATE), contingent upon approval by the CITY, and the CONSULTANT shall commence work after notification to proceed by the CITY’S Contract Administrator. The AGREEMENT shall continue in full force and effect through the earlier of complete rendition of the services hereunder or three (3) years from the effective date, subject to any earlier termination in accordance with this AGREEMENT. The AGREEMENT may be extended by the CITY for two (2) one-year term, not to exceed a total contract period of five (5) years.

B. The CONSULTANT is advised that any recommendation for the AGREEMENT award is not binding on the CITY until the AGREEMENT is fully executed and approved by the CITY.

C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by an AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.

D. A separate Notice to Proceed will be issued for each Task Order. The CITY may, at its discretion, issue concurrent Notice's to Proceed, allowing the CONSULTANT to perform concurrent Task Orders. By entry into this AGREEMENT and upon the CITY’s issuance of a written "Notice to Proceed," the CITY contracts for the services in the specific Task Order. The CONSULTANT shall not perform any other Task Order work of the AGREEMENT, and this AGREEMENT shall not be a contract for any other Task Order, until further performance is authorized by the CITY’s issuance of a written "Notice to Proceed." It shall, however, remain the CONSULTANT’s offer to perform all services described herein. In the event the CONSULTANT performs services without the CITY’s prior written authorization, the CONSULTANT will not be entitled to compensation for such services.

Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within the agreed upon duration for each individual Task Order from such authorization to proceed.

ARTICLE IV ALLOWABLE COSTS AND PAYMENTS
A. The CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. The CONSULTANT will be reimbursed within thirty (30) days upon receipt by the CITY’S Contract Administrator of itemized invoices in duplicate.

B. In addition, the CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.

C. Specific projects will be assigned to the CONSULTANT through issuance of Task Orders.

D. Progress payments will be made monthly in arrears based on services provided and actual costs incurred. The CONSULTANT will be reimbursed within thirty days upon receipt by the CITY’s Contract Administrator of itemized invoices.

E. After a project to be performed under this AGREEMENT is identified by the CITY, the 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 Contract Administrator. The draft Task Order will be delivered to the CONSULTANT for review. The 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 an AGREEMENT has been reached on the negotiable items and total cost; the finalized Task Order shall be signed by both the CITY and the CONSULTANT.

F. 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 the CONSULTANT’s approved Cost Proposal. The CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. The CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.

G. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. The CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.

H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.

I. The CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by the CITY and notification to proceed has been issued by the CITY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.

J. A Task Order is of no force or effect until returned to the CITY and signed by an authorized representative of the CITY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by the CITY.

K. The CONSULTANT will be reimbursed within thirty (30) days upon receipt by the CITY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which the 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 Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due the CITY that includes any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by the CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to the CITY’s Contract Administrator at the following address:

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

CITY OF MARYSVILLE, FINANCE DEPARTMENT
ATTN: JENNIFER STYCZYNSKI
526 C Street
Marysville, CA 95901
L. 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.

M. The total amount payable by the CITY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.

N. 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.

O. Task Orders may not be used to amend the language (or the terms) of this AGREEMENT, not to exceed the scope of work under this AGREEMENT.

P. The total amount payable by the CITY for all Task Orders resulting from this AGREEMENT shall not exceed $ (Amount). 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.

Q. Payment by the CITY under this AGREEMENT shall not be deemed a waiver of defects in the CONSULTANT’s services, even if such defects were known to the CITY at the time of payment.

R. If the CONSULTANT fails to submit the required analytical results, plans, designs, specifications, estimates, notes, calculations, analysis, reports, graphics, drawings, visual simulations, studies, product, data, manuals, details, deliverables, backup documents, other documents, and other items required by this Contract and any approved Task Order, the CITY shall have the right to withhold payment and/or terminate this Contract in accordance with the termination provisions of this Contract. If the Contract is terminated, the CONSULTANT shall, at the CITY’ request, return all materials recovered or developed by the CONSULTANT under the Contract including, but not limited to, photos, field notes, computer data files, maps, artifact collections, catalogs, analytical results, plans, designs, specifications, estimates, notes, calculations, analysis, reports, graphics, drawings, visual simulations, studies, product, data, manuals, details, deliverables, backup documents, other documents, and other items required by this Contract.

ARTICLE V TERMINATION
A. This AGREEMENT shall terminate without any liability of the CITY to the CONSULTANT upon the earlier of: (i) the CONSULTANTs filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the CONSULTANT; (ii) seven (7) calendar days prior written notice with or without cause by the CITY to the CONSULTANT; (iii) the CITY’s non-appropriation of funds sufficient to meet its obligations hereunder during any CITY fiscal year of this AGREEMENT, or insufficient funding for the Project; or (iv) expiration of this AGREEMENT.

B. Immediately upon any termination or expiration of this AGREEMENT, the CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the CITY any and all unearned payments and all properties and materials in the possession of the CONSULTANT that are owned by the CITY. Subject to the terms of this AGREEMENT, the CONSULTANT shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The CONSULTANT shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided.

C. In the event of termination due to failure of the CONSULTANT to satisfactorily perform in accordance

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
with the terms of this AGREEMENT, the CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the CITY’s damages caused by such failure. In no event shall any payment by the CITY pursuant to this AGREEMENT constitute a waiver by the CITY of any breach of this AGREEMENT which may then exist on the part of the CONSULTANT, nor shall such payment impair or prejudice any remedy available to the CITY with respect to the breach.

D. Upon any breach of this AGREEMENT by the CONSULTANT, the CITY may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the AGREEMENT; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the AGREEMENT. If it is determined that the CITY improperly terminated this AGREEMENT for default, such termination shall be deemed a termination for convenience.

E. The CONSULTANT shall provide the CITY with adequate written assurances of future performance, upon the CITY’s Contract Administrator’s request, in the event the CONSULTANT fails to comply with any terms or conditions of this AGREEMENT.

F. The CONSULTANT shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the CONSULTANT and without its fault or negligence such as, acts of God or the public enemy, acts of the CITY in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The CONSULTANT shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence.

G. Any notice of termination sent to the CONSULTANT shall include the reason(s) for such termination or state that it is without cause.

H. The CITY may temporarily suspend this AGREEMENT, at no additional cost to the CITY, provided that the CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If the CITY gives such notice of temporary suspension, the CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.

I. Notwithstanding any provisions of this AGREEMENT, the CONSULTANT shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this AGREEMENT by the CONSULTANT, and the CITY may withhold any payments due to the CONSULTANT until such time as the exact amount of damages, if any, due the CITY from the CONSULTANT is determined.

J. The CITY shall have the right to terminate this AGREEMENT for any reason, at its convenience, upon written notice of termination to the CONSULTANT. The CONSULTANT shall deliver to the CITY copies of all writings, whether or not completed, which are prepared by the CONSULTANT, its employees, or subcontractors, if any, pursuant to this AGREEMENT. The CITY shall pay the CONSULTANT for work actually performed up to the effective date of the Notice of Termination.

ARTICLE VI COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. Records of the CONSULTANT’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis. The CONSULTANT and its subcontractors shall maintain any and all ledgers, books of account, documents, papers, accounting records, invoices, vouchers, canceled checks, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. The CONSULTANT and its subcontractors

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
shall make such materials available at their respective offices at all reasonable times during the period of this AGREEMENT and for three (3) years, or longer if required by law, from the date of final payment under the AGREEMENT. The CITY, the State, the State Auditor, the Federal Highway Administration (FHWA) or any duly authorized representative of the federal government shall have access to any books, records, papers, accounting records and other documents of the CONSULTANT and its subcontractors that are pertinent to the AGREEMENT for audit, examinations, excerpts, and transcriptions. Copies thereof shall be furnished by the CONSULTANT, if requested. Copies of such documents shall be provided to the CITY for inspection at 526 C Street, Marysville, California, when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at the CONSULTANT’s address indicated for receipt of notices in this AGREEMENT. If any litigation, claim, negotiations, audit, or other action is commenced before the expiration of the three-year (3) time period, all records shall be retained and made available until such action is resolved, or until the end of said time period whichever shall later occur. If the CONSULTANT should subcontract all or any portion of the services to be performed under this AGREEMENT, the CONSULTANT shall cause each subcontractor to also comply with the requirements of this section and in the event a subcontract is entered into for an amount in excess of $25,000, the subcontract shall include this paragraph in its entirety. This article shall survive expiration or termination of this AGREEMENT.

B. The CONSULTANT agrees that 48 CFR 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.

C. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.

D. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the CONSULTANT to the CITY.

ARTICLE VII RETENTION OF RECORD/AUDITS
A. For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and the CITY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. The CITY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.

B. 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 Finance Director, or a designated representative of these officers. Copies of such documents shall be provided to the CITY for inspection at 526 C Street, Marysville, California, when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at CONSULTANT’s address indicated for receipt of notices in this AGREEMENT.

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
C. When the CITY has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment, or termination of the CONSULTANT’s business, the CITY may, by written request by any of the above-named officers, require that custody of the records be given to the CITY and that documents be maintained by City Hall.

ARTICLE VIII AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by this AGREEMENT, shall be reviewed by the CITY’S Finance Director.

B. Not later than thirty (30) calendar days after issuance of the final audit report, the CONSULTANT may request a review by the CITY’S Finance Director of unresolved audit issues. The request for review will shall be submitted in writing.

C. Neither the pendency of a dispute nor its consideration by the CITY will excuse the CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.

D. The CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT 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 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review, it is the CONSULTANT’s responsibility to ensure Federal, CITY, 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 the CONSULTANT and approved by the CITY’s Contract Administrator to conform to the audit or review recommendations. The CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by the CITY at its sole discretion. Refusal by the CONSULTANT to incorporate audit or review recommendations, or to ensure that the Federal, CITY or local governments have access to CPA work papers, will be considered a breach of the AGREEMENT’s terms, and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.

E. The CONSULTANT’s Cost Proposal may be subject to a CPA ICR audit work paper review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, 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 Contract Administrator 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.

1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI 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 IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, the CITY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) 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 (AASHTO) Audit Guide; and other applicable procedures and guidelines} is received and approved by IOAI. Accepted rates will be as follows:

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.

2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require the CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.

3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI 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 accepted 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 accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.

4. The CONSULTANT may submit to the CITY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of the CITY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO THE CITY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between CITY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.

ARTICLE IX SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the CITY and any subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the CITY for the acts and omissions of its subconsultants 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 the CONSULTANT. The CONSULTANT's obligation to pay its subconsultants is an independent obligation from the CITY's obligation to make payments to the CONSULTANT.

B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the CITY’s Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.

C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to subconsultants unless otherwise noted.

D. CONSULTANT shall pay its subconsultants within fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the CITY. Any substitution of subconsultants must be approved in writing by the CITY’s Contract Administrator in advance of assigning work to a substitute subconsultant.

E. The CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed the CONSULTANT on account of the work performed by the subconsultants, to

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the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the CONSULTANT or subconsultant to a subconsultant, the CONSULTANT or subconsultant may withhold no more than one-hundred fifty percent (150%) of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of two percent (2%) of the amount due per month for every month that payment is not made.

F. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.

G. No retainage will be held by the CITY from progress payments due to the CONSULTANT. The CONSULTANTS and their subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the CITY’s prior written approval. Any violation of these provisions shall subject the violating the CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed 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, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.

H. Any violation of these provisions shall subject the violating the CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed 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, deficient subcontract performance, or noncompliance by a subconsultant.

ARTICLE X EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. The CONSULTANT may claim reimbursement for providing equipment or supplies. However, such claimed costs shall be in compliance with 48 Code of Federal Regulation (CFR), Chapter 1, Part 31 (Federal Acquisition Regulation – FAR cost principles) and 2 CFR, Part 200, and be consistent with the CONSULTANT’s company-wide allocation policies and charging practices with all of the agencies including the Federal government, state governments, local agencies, and private agencies.

B. Prior authorization in writing by the CITY’s Contract Administrator shall be required before the CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or the CONSULTANT services. The CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.

C. For purchase of any item, service, or consulting work not covered in the CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by the CITY’s Contract Administrator, three (3) competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.

D. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:

1. The CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable

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property is defined as having a useful life of at least two (2) years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, the CITY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, the CONSULTANT may either keep the equipment and credit the 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 the CITY in an amount equal to the sales price. If the CONSULTANT elects to keep the equipment, fair market value shall be determined at the CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by the CITY and the CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by the CITY.

2. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.

ARTICLE XI STATE PREVAILING WAGE RATES
A. No CONSULTANT or subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.

B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at CITY construction sites, at CITY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve the CITY’s projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.

C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.

D. Payroll Records

1. Each CONSULTANT and subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.

2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the

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CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by the CITY’s representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of the CITY, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to the CITY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the CITY’s Contract Administrator by both email and regular mail on the business day following receipt of the request.

3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.

4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the CITY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.

5. The CONSULTANT shall inform the CITY of the location of the records enumerated under paragraph (1) above, including the street address, city, and county, and shall, within five (5) working days, provide a notice of a change of location and address.

6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to the CITY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by the CITY from payments then due. The CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a subconsultant to comply with this section.

7. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the CITY Contract Administrator.

E. Penalty

1. The CONSULTANT and any of its subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any subconsultant shall forfeit to the CITY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the

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AGREEMENT by the CONSULTANT or by its subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.

2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code.

The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.

3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.

4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime consultant of the project is not liable for the penalties described above unless the prime consultant had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.

1. Pursuant to Labor Code §1775, the CITY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.

2. If the CITY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if the CITY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by the CITY.

B. Hours of Labor

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Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the CITY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.

C. Employment of Apprentices

1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.

2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.

ARTICLE XII CONFLICT OF INTEREST
A. Prior to the CITY's execution of this AGREEMENT, the CONSULTANT shall complete a City of Marysville conflict of interest disclosure statement in the form as set forth in Exhibit D. During the term of this AGREEMENT, the CONSULTANT shall have the obligation and duty to immediately notify the CITY in writing of any change to the information provided by the CONSULTANT in such statement.

B. The CONSULTANT certifies that it has disclosed to the CITY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. The CONSULTANT agrees to advise the CITY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT.

C. The 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.

D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any AGREEMENT to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.

E. The CONSULTANT (including principals, associates, and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this AGREEMENT or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of CONSULTANT’s services hereunder. The CONSULTANT further covenants

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and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this AGREEMENT.

F. During the term of this AGREEMENT, the CONSULTANT shall immediately disclose any financial, business, or other relationship with the CITY that may have an impact upon the outcome of this AGREEMENT or any ensuing the CITY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing the CITY construction project which will follow. The CONSULTANT further agrees to complete any statements of economic interest if required by either City ordinance or State law. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the CONSULTANT shall immediately notify the CITY of these facts in writing.

G. During the term of this AGREEMENT, neither the CONSULTANT, nor any firm affiliated with the CONSULTANT, nor any of the CONSULTANT's subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project with the exception of any subcontractor whose services are limited to providing surveying or materials testing information. The CONSULTANT and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. An affiliated firm is one which is subject to the control of the same person(s) through joint-ownership or otherwise.

H. During the term of this AGREEMENT, the CONSULTANT shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, 23 U.S.C. § 112, FHWA regulations applicable to design and engineering consulting contracts found at 23 C.F.R. 172.1 et seq., California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) I. At any time, upon written request of the CITY, the CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the CONSULTANT and the respective subcontractor(s) are in full compliance with all laws and regulations. The CONSULTANT shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest.

J. In performing the work or services to be provided hereunder, the CONSULTANT shall not employ or retain the services of any person while such person either is employed by the CITY or is a member of any City council, commission, board, committee, or similar CITY body.

K. If the CONSULTANT should subcontract all or any portion of the work to be performed or services to be provided under this AGREEMENT, the CONSULTANT shall include the provisions of this Article in each subcontract and require its subcontractors to comply therewith.

ARTICLE XIII REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION A. The 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, the CITY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.

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ARTICLE XIV PROHIBITION OF EXPENDING CITY, STATE, OR FEDERAL FUNDS FOR LOBBYING A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:

1. No State, Federal, or CITY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, 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 or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.

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 agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

B. 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 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.

C. The 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 subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.

ARTICLE XV NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.

B. During the performance of this AGREEMENT, the CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. The CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

C. The CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by the CITY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.

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D. The CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or the CITY shall require to ascertain compliance with this clause.

E. The 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.

F. The CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.

G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States 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.

H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally assisted programs of the U.S. Department of Transportation (49 CFR 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.

I. The CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the CITY components of the DBE Program Plan, the CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.

ARTICLE XVI DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer, or manager:

1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;

2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;

3. Does not have a proposed debarment pending; and

4. 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.

B. Any exceptions to this certification must be disclosed to the CITY. Exceptions will not necessarily result in denial of recommendation for award but will be considered in determining responsibility.

Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.

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C. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.

ARTICLE XVII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. The CONSULTANT, subrecipient (the CITY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, the CITY shows a contract goal for DBEs.

CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.

The CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is the CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes or work code applicable to the type of work the firm will perform on the contract. Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.

All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies the CONSULTANT purchases from DBEs counts towards the goal in the following manner:
• One hundred percent (100%) counts if the materials or supplies are obtained from a DBE manufacturer.
• Sixty percent (60%) counts if the materials or supplies are purchased from a DBE regular dealer.
• Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer." This AGREEMENT is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. The CONSULTANTs who enter into a Federally funded agreement will assist the CITY in a good faith effort to achieve California's statewide overall DBE goal.

B. The goal for DBE participation for this AGREEMENT is %. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, the CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

C. The CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If the CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding

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evaluation of good faith efforts to meet the DBE goal.

D. Contract Assurance Under 49 CFR 26.13(b):

The CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.

Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the CONSULTANT from future proposing as non-responsible E. Termination and Substitution of DBE Subconsultants
The CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the CONSULTANT or DBE subconsultant obtains the CITY’s written consent. The CONSULTANT shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the CITY. Unless the CITY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form, included in the Bid.

The CITY authorizes a request to use other forces or sources of materials if the CONSULTANT shows any of the following justifications:

1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.

2. The CITY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the CITY’s bond requirements.

3. Work requires a CONSULTANT's license and listed DBE does not have a valid license under Contractors License Law.

4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).

5. Listed DBE's work is unsatisfactory and not in compliance with the contract.

6. Listed DBE is ineligible to work on the project because of suspension or debarment.

7. Listed DBE becomes bankrupt or insolvent.

8. Listed DBE voluntarily withdraws with written notice from the Contract.

9. Listed DBE is ineligible to receive credit for the type of work required.

10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.

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11. The CITY determines other documented good cause.

The CONSULTANT shall notify the original DBE of the intent to use other forces or material sources and provide the reasons and provide the DBE with five (5) days to respond to the notice and advise the CONSULTANT and the CITY of the reasons why the use of other forces or sources of materials should not occur.

The CONSULTANT’s request to use other forces or material sources must include:

1. One or more of the reasons listed in the preceding paragraph.

2. Notices from the CONSULTANT to the DBE regarding the request.

3. Notices from the DBEs to the CONSULTANT regarding the request.

If a listed DBE is terminated or substituted, the CONSULTANT must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal.

F. Commitment and Utilization
The CITY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.

The CITY shall request the CONSULTANT to:

1. Notify the CITY’s contract administrator or designated representative of any changes to its anticipated DBE participation.

2. Provide this notification before starting the affected work.

3. Maintain records including:
• Name and business address of each 1st - tier subconsultant. • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier.
• Date of payment and total amount paid to each business (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment).

If the CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.

If a DBE is decertified before completing its work, the DBE must notify the CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify the CONSULTANT in writing of the certification date. The CONSULTANT shall submit the notifications to the CITY. On work completion, the CONSULTANT shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form to the CITY within 30 days of contract acceptance.

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Upon work completion, the CONSULTANT shall complete Exhibit 17-F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the CITY within ninety (90) days of contract acceptance. The CITY will withhold ten thousand dollars ($10,000) until the form is submitted. The CITY will release the withhold upon submission of the completed form.

In the CITY’s reports of DBE participation to Caltrans, the CITY must display both commitments and attainments.

G. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially useful function (CUF) on the AGREEMENT. The CUF must be evaluated on an agreement-byagreement basis. A DBE performs a 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.

H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, 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.

I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT 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.

J. The 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 CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.

K. If a DBE subconsultant is decertified during the life of the AGREEMENT, 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 AGREEMENT, the subconsultant shall notify the CONSULTANT in writing with the date of certification. Any changes should be reported to the CITY’s Contract Administrator within thirty (30) calendar days.

L. After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the tenth (10) day of the following month, the prime contractor/consultant shall complete and email the Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to the Agency.

M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.

ARTICLE XVII INDEMNIFICATION
A. To the fullest extent allowed by law, the CONSULTANT specifically agrees to indemnify, defend,

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CONSULTANT SERVICES
and hold harmless the CITY, its officers, agents, and employees from and against any and all actions, claims, demands, losses, expenses (including attorneys' fees and expert witness expenses), damages, and liabilities resulting from injury or death of a person or injury to property or any other claim, arising out of or in any way connected with the performance of this AGREEMENT, however caused regardless of any negligence of the CITY, whether active or passive, excepting only such claims as may be caused by the sole active negligence or willful misconduct of the CITY.

The CONSULTANT shall pay all costs that may be incurred by the CITY in enforcing this indemnity, including reasonable attorneys' fees. The CONSULTANT shall provide indemnity to the CITY pursuant to this paragraph in the event the Claimant and/or the CITY allege conduct on the CONSULTANT's part which renders the CONSULTANT fully or partially responsible for the alleged claim or otherwise obligated to provide a defense and/or indemnity to the CITY. The CONSULTANT's obligations of defense and indemnity arise even if the claim is frivolous or lacking in merit. The CONSULTANT shall defend and indemnify the CITY pursuant to this section unless and until it is finally established by a court of law that the CITY's sole active negligence or willful misconduct caused the alleged claim. The defense and indemnification obligations of this AGREEMENT are undertaken in addition to, and shall in no way be limited by, the insurance obligations contained in this AGREEMENT. The indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for the CONSULTANT or its agents under workers' compensation acts, disability benefit acts or other employee benefit acts. The indemnity provisions of this section survive the termination and/or expiration of the AGREEMENT.

B. The CONSULTANT's duty to defend is separate and independent of its duty to indemnify. The duty to defend includes claims for which the CITY may be liable without fault or be strictly liable. The duty to defend applies regardless of whether the issues of negligence, strict liability, fault, default, or other obligation on the part of the CITY has been determined. The duty to defend applies immediately regardless of whether the CITY has paid any sums or incurred any detriment arising out of or relating (directly or indirectly) to any claims. Notwithstanding the foregoing, the CITY on behalf of itself reserves the right to assume the defense of any action, arbitration or proceeding against which the CONSULTANT may have an obligation to defend pursuant to this AGREEMENT including the right to appoint counsel of its choice, without affecting the CONSULTANT's obligation to indemnify for the cost of such defense.

C. The CONSULTANT shall be liable to the CITY for any loss of or damage to the CITY’s property arising from or in connection with the CONSULTANT's performance hereunder.

ARTICLE XIX INSURANCE
A. Throughout the life of this AGREEMENT, the CONSULTANT shall pay for and maintain in full force and effect all insurance as required in Exhibit C, which is incorporated into and part of this AGREEMENT.

ARTICLE XX FUNDING REQUIREMENTS
A. 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.

B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to the 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.

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C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.

D. The CITY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.

ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.

B. The CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by the CITY’s Contract Administrator.

C. There shall be no change in the CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by the CITY’s Contract Administrator.

ARTICLE XXII CONTINGENT FEE
A. The CONSULTANT maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for the CONSULTANT, to solicit or secure this AGREEMENT. Further, the 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 the CONSULTANT, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this AGREEMENT. For breach or violation of this warranty, the CITY shall have the right to rescind this AGREEMENT without liability. For the term of this AGREEMENT, no member, officer, or employee of the CITY, during the term of his or her service with the CITY, shall have any direct interest in this AGREEMENT, or obtain any present or anticipated material benefit arising therefrom.

ARTICLE XXIIII DISPUTES
Prior to either party commencing any legal action under this AGREEMENT, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.

A. 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 the CITY’s Contract Administrator and City Manager, who may consider written or verbal information submitted by the CONSULTANT.

B. Not later than thirty (30) calendar days after completion of all work under the AGREEMENT, the CONSULTANT may request review by the CITY’s Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.

C. Neither the pendency of a dispute, nor its consideration by the committee will excuse the CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT.

ARTICLE XXIV INSPECTION OF WORK

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CONSULTANT SERVICES
The CONSULTANT and any subconsultant shall permit the CITY, the State, and the FHWA 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.

ARTICLE XXV SAFETY
A. The CONSULTANT shall comply with OSHA regulations applicable to the CONSULTANT regarding necessary safety equipment or procedures. The CONSULTANT shall comply with safety instructions issued by the CITY’s Risk Manager, Public Works Director, and other CITY representatives. the CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.

B. Pursuant to the authority contained in Vehicle Code §591, the CITY has determined that such areas may be within the limits of the project and are open to public traffic. The CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. The 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.

C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.

D. The CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.

ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by the CONSULTANT under this AGREEMENT shall become the property of the CITY, and the CONSULTANT shall have no property right there in whatsoever. Immediately upon termination, the CITY shall be entitled to, and the CONSULTANT shall deliver to the CITY, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by the CONSULTANT in performing this AGREEMENT which is not the CONSULTANT’s privileged information, as defined by law, or the CONSULTANT’s personnel information, along with all other property belonging exclusively to the CITY which is in the CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by the CITY.

B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by the CONSULTANT hereunder to be work made for hire. The CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of the CITY without restriction or limitation upon its use or dissemination by the CITY.

C. Nothing herein shall constitute or be construed to be any representation by the CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.

Any reuse by the CITY for another project or project location shall be at the CITY’s sole risk.

D. This AGREEMENT creates a nonexclusive and perpetual license for the CITY to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in documents or works of authorship fixed in any tangible medium of expression including, but not limited to, data magnetically or otherwise recorded on computer diskettes, CDs or other electronic

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form which are prepared or caused to be prepared by the CONSULTANT under this AGREEMENT (“Documents and Data”). The CONSULTANT shall require all subconsultants to agree in writing that the CITY is granted a nonexclusive and perpetual license for any Documents and Data the subconsultant prepares under this AGREEMENT. The CONSULTANT represents and warrants that the CONSULTANT has the legal right to license any and all Documents and Data. The CONSULTANT makes no such representation and warranty in regard to Documents and Data which may be provided to the CONSULTANT by the CITY. The CITY shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this AGREEMENT shall be at the CITY’s sole risk.

E. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federalaid contracts).

F. The CITY may permit the CONSULTANT to copyright reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the CITY and FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.

ARTICLE XXVII CLAIMS FILED BY CITY’S CONSTRUCTION CONTRACTOR A. If claims are filed by the CITY’s construction contractor relating to work performed by the CONSULTANT’s personnel, and additional information or assistance from the CONSULTANT’s personnel is required in order to evaluate or defend against such claims; the CONSULTANT agrees to make its personnel available for consultation with the CITY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.

B. The CONSULTANT’s personnel that the CITY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from the CITY.

Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the CONSULTANT’s personnel services under this AGREEMENT.

C. Services of the CONSULTANT’s personnel in connection with the CITY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.

ARTICLE XXVIII CONFIDENTIALITY OF INFORMATION
A. The CONSULTANT will be required to keep in strict confidence all confidential, privileged, trade secret, and proprietary information, data and other materials in any format generated, used, or obtained by the CITY or created by the CONSULTANT in connection with the performance of the Work. The CONSULTANT shall not use any Confidential Material for any purpose other than the performance of the Work, unless otherwise authorized in writing by the CITY. The CONSULTANT also shall not disclose any Confidential Material to any person or entity not connected with the performance of the Work under this AGREEMENT, unless otherwise authorized in advance in writing by the CITY. If there is a question if Confidential Material is protected from disclosure or is a public record or in the public domain, the party considering disclosure of such materials shall consult with the other party concerning the proposed disclosure.

B. The CONSULTANT, and its officers, employees, agents, and subcontractors, shall at all times take all steps that are necessary to protect and preserve all Confidential Material. At no time shall the CONSULTANT, or its officers, employees, agents, or subcontractors in any manner, either directly

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or indirectly, use for personal benefit or divulge, disclose, or communicate in any manner, any Confidential Material to any person or entity unless specifically authorized in writing by the CITY or by order of a court or regulatory entity with jurisdiction over the matter. The CONSULTANT, and its officers, employees, agents, and subcontractors shall protect the Confidential Material and treat it as strictly confidential in accordance with applicable law, City policies and directives, and best industry security practices and standards.

C. Permission to disclose information on one occasion, or public hearing held by the CITY relating to the AGREEMENT, shall not authorize the CONSULTANT to further disclose such information, or disseminate the same on any other occasion.

D. The CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or the CITY’s actions on the same, except to the CITY’s staff, the CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.

E. The CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by the CITY, and receipt of the CITY’S written permission.

F. If any person or entity, other than the CITY or the CONSULTANT, requests or demands, by subpoena, discovery request, California Public Records Act request or otherwise, Confidential Material or its contents, the party to whom the request is made will immediately notify the other party, so that the parties may collectively consider appropriate steps to protect the disclosure of those materials. The parties agree to take all steps reasonably necessary to preserve the confidential and privileged nature of the Confidential Material and its content. In the event that the parties cannot agree whether to oppose or comply with a disclosure demand, the opposing party may oppose the demand at its sole cost and expense, in which event the party favoring disclosure will refrain from disclosing the demanded Confidential Material until such time as a final agreement regarding disclosure is reached or, if an agreement is not reached, a judicial determination is made concerning the demand.

G. The CONSULTANT’s personnel may be required to sign a confidentiality and nondisclosure agreement.

H. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.

I. All information related to the construction estimate is confidential and shall not be disclosed by the CONSULTANT to any entity, other than the CITY, Caltrans, and/or FHWA. All of the materials prepared or assembled by the CONSULTANT pursuant to performance of this Contract are confidential and the CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of the CITY or except by court order. If the CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, the CITY has the right to reimbursement and indemnity from the CONSULTANT for any damages caused by the CONSULTANT releasing the information, including, but not limited to, the CITY’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.

ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, the 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 the CONSULTANT within the immediately preceding two (2) year period, because of the CONSULTANT’s failure to comply with an order of a federal court that orders the CONSULTANT

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to comply with an order of the National Labor Relations Board.

ARTICLE XXX EVALUATION OF CONSULTANT
The CONSULTANT’s performance will be evaluated by the CITY. A copy of the evaluation will be sent to the CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the AGREEMENT record.

ARTICLE XXXI PROMPT PAYMENT FROM THE CITY TO CONSULTANT The CITY shall make any progress payment within thirty (30) days after receipt of an undisputed and properly submitted payment request from the CONSULTANT on a professional service contract. Upon receipt of a payment request, the CITY shall act in accordance with both of the following:
(1) Each payment request shall be reviewed by the CITY as soon as practicable after receipt for the purpose of determining that the payment request is a proper payment request. (2) Any payment request determined not to be a proper payment request suitable for payment shall be returned to the CONSULTANT as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.

ARTICLE XXXII RECYCLING PROGRAM
A. In the event the CONSULTANT maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the within the jurisdiction of the Regional Waste Management Authority (RWMA), the CONSULTANT at its sole cost and expense shall:
(1) Immediately establish and maintain a viable and ongoing recycling program, approved by the RWMA, for each office and facility. Literature describing the CITY’s recycling programs is available from the RWMA website https://www.yubasutterrecycles.com and by calling the RWMA at (530) 634-6890.
(2) Immediately contact the RWMA at (530) 634-6890 and schedule a waste audit and cooperate with such Division in their conduct of the audit for each office and facility. (3) Cooperate with and demonstrate to the satisfaction of the RWMA the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof.

ARTICLE XXXIII NOTIFICATION
A. 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 forty-eight (48) hours from the time of mailing if mailed as provided in this section.

If to CITY: City of Marysville
526 C Street
Marysville, CA 95901
Attn: Vincenzo Corazza, Contract Administrator

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CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
If to CONSULTANT: (Company Name)
(Mailing Address)
(City State Zip)
Attn: (Company Representative Name), Project Manager

ARTICLE XXXIV OTHER PROVISIONS
B. Binding. Once this AGREEMENT is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives.

C. Compliance With Law. In providing the services required under this AGREEMENT, the CONSULTANT shall at all times use the standard of care in its profession to comply with all applicable laws of the United States, the State of California and the CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this AGREEMENT.

D. Waiver. The waiver by either party of a breach by the other of any provision of this AGREEMENT shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this AGREEMENT. No provisions of this AGREEMENT may be waived unless in writing and signed by all parties to this AGREEMENT. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.

E. Governing Law and Venue. This AGREEMENT and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this AGREEMENT shall be held exclusively in a State court in the County of Yuba.

F. Headings. The section headings in this AGREEMENT are for convenience and reference only and shall not be construed or held in any way to explain, modify, or add to the interpretation or meaning of the provisions of this AGREEMENT.

G. Severability. If any term or portion 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.

H. Interpretation. The parties acknowledge that this AGREEMENT in its final form is the result of the combined efforts of the parties and that, should any provision of this AGREEMENT be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this AGREEMENT in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.

I. Litigation Expenses and Attorney’s Fees. If either party to this AGREEMENT commences any legal action against the other part 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 reasonable attorney’s fees. The parties agree that the amount of attorney’s fees shall be limited to the sum of $10,000. The parties agree that each party shall bear their own attorney’s fees which that party incurs in excess of $10,000.

J. Exhibits. Each exhibit and attachment referenced in this AGREEMENT is, by the reference, incorporated into and made a part of this AGREEMENT.

K. Precedence of Documents. In the event of any conflict between the body of this AGREEMENT and any Exhibit or Attachment hereto, the terms and conditions of the body of this AGREEMENT shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this

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AGREEMENT, shall be null and void.

L. RFQ Document. Any Request for Qualifications and documents issued therewith (collectively RFQ) by the CITY that resulted in selection of the CONSULTANT for entry into this AGREEMENT are hereby incorporated into and made a part of this AGREEMENT. In the event of a conflict between the RFQ and this AGREEMENT (including any Exhibit hereto), this AGREEMENT (including any Exhibit hereto) shall take precedence.

M. 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 hereof shall have been signed by both parties hereto. In approving this AGREEMENT, it shall not be necessary to produce or account for more than one such counterpart.

N. Authority to Enter AGREEMENT. The 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 to bind each respective party.

O. Entire AGREEMENT. This AGREEMENT constitutes the complete and exclusive statement of AGREEMENT between the CITY and the CONSULTANT. All prior written and oral communications, including correspondence, drafts, memoranda, and representations are superseded in total by this AGREEMENT.

P. Amendments. This AGREEMENT may be modified or amended only by a written document executed by both the CONSULTANT and the CITY and approved as to form by the City Attorney.

No oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.

Q. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

R. No Third-Party Beneficiaries. The rights, interests, duties, and obligations defined within this AGREEMENT are intended for the specific parties hereto as identified in the preamble of this AGREEMENT. Notwithstanding anything stated to the contrary in this AGREEMENT, it is not intended that any rights or interests in this AGREEMENT benefit or flow to the interest of any third parties.

S. Licenses. The CONSULTANT represents and warrants to the CITY that it has all licenses, permits, qualifications, insurance, and approvals of whatsoever nature which are legally required of the CONSULTANT to practice its profession. The CONSULTANT represents and warrants to the CITY that the CONSULTANT shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this AGREEMENT, any licenses, permits, insurance, and approvals which are required by the CITY for its business. Prior to execution of this AGREEMENT by the CITY, the CONSULTANT shall have provided evidence to the CITY that the CONSULTANT is licensed to perform the services called for by this AGREEMENT. If the CONSULTANT should subcontract all or any portion of the work or services to be performed under this AGREEMENT, the CONSULTANT shall require each subcontractor to provide evidence to the CITY that subcontractor is licensed to perform the services called for by this AGREEMENT (or that no license is required) before beginning work.

T. The CONSULTANT’s services pursuant to this AGREEMENT shall be provided under the supervision of (Project Manager First and Last Name), and he/she shall not assign another to supervise the CONSULTANT’s performance of this AGREEMENT without the prior written approval of the City Manager.

U. During the performance of this Agreement, the CONSULTANT agrees to comply with the title VI assurances listed in Exhibit E.

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

ARTICLE XXXV CONTRACT
The two parties to this AGREEMENT, who are the before named the CONSULTANT and the before named the CITY, hereby agree that this AGREEMENT constitutes the entire AGREEMENT which is made and concluded in duplicate between the two parties. Both of these parties for and in consideration of the payments to be made, conditions mentioned, and work to be performed; each agree to diligently perform in accordance with the terms and conditions of this AGREEMENT as evidenced by the signatures below.

ARTICLE XXXVI SIGNATURES
IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed on the date first written above.

CITY OF MARYSVILLE (Company Name)
By: By: (Representative Signature)
Jim Schaad, City Manager Title: (Representative Title________________ APPROVED AS TO FORM: Business License #: ________________ By: Tax ID No.:

Brant Bordsen, City Attorney
ATTEST:

By:

Nicole Moe, City Clerk

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

EXHIBIT A

SCOPE OF SERVICES

PURPOSE OF WORK
Under the direction of the CITY’s Contract Administrator and on an as-needed basis, services performed shall include, but not be limited to:
• Providing general municipal engineering services and management as an extension to City staff. • Attending City Council, Planning Commission, staff, and public meetings as required. • Collaborating as a team member of staff and assist the Public Works Director, Community Development Director, Finance Director, City Contract Administrator, and others in developing and administering engineering regulations, planning, and grant programs, and other programs that provide services to the public regarding City engineering services. • Providing engineering support to the Public Works Director, City Planner, Building Inspector / Official, Fire District staff, and others in reviewing development projects and preparing related planning policies and program that support the City’s General Plan, Zoning Code, and Design Review Manual.
• Coordinating with other agencies, public, and utility companies and others on engineering matters.
• Advising the CITY as to funding availabilities and, when directed, initiate, and prepare funding (grant) applications.
• Performing additional functions, including, but not limited to, the preparation of general correspondence and staff reports.
• Providing additional engineering support services, as requested. These support services may include, but may not be limited to, Computer Aided Design (CAD) drafting, design support, preparation of exhibits, and research for technical specifications, office engineering, and engineering support during construction.

The Contract City Engineering Consultant is expected to:
• Support capital improvement project or programs, including defining the project scope, determining project budget and financial resources.
• Represent the Community Development and Public Works Departments to other City departments, elected officials, and outside agencies; explain and interpret departmental programs, policies, and activities.
• Be responsible for city compliance with all Federal, State, County, and local laws, and regulations, including funding obligations.
• Monitor changes in laws, regulations, and technology that may affect city operations; implement policy and procedural changes as required.
• Prepare reviews and present staff reports, various management and information updates, and reports on special projects as assigned by Directors and the City Manager. • Understand all provisions of the General Plan, Zoning Code, Subdivision Ordinance, City Design Standards and Specifications, and Design Review Manual. • Respond to complicated and sensitive public inquiries and complaints and assist with resolutions and alternative recommendations.

LOCATION OF WORK
All projects will be within the City of Marysville city limits and sphere of influence.

REQUIRED SERVICES

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
For all general engineering services as listed in the purpose of work section of this Agreement, the CITY shall pay the CONSULTANT a fee based on the CONSULTANT’s actual time and material necessarily and actually expended on the Work in accordance with a negotiated fee schedule.

All project specific services performed under an awarded contract will require approval by the Contract Administrator and be issued through a Task Order. A cost proposal breakdown shall be requested from the CONSULTANT to identify and refine the scope of services prior to issuing the authorized Task Order.

The cost breakdown shall detail the negotiated scope, schedule, and projected costs.

The type of project work anticipated includes:

1. Projects to be completed with project-specific funding either from public or private sources.

2. Any other projects the CITY determines should require a Task Order.

Pursuant to an authorized Task Order, the CONSULTANT shall provide Engineering Services within the geographical jurisdiction of this Contract set forth in the “Location of Work” Section, and all necessary personnel, material, transportation, lodging, instrumentation, and the specialized facilities and equipment necessary to satisfy all appropriate agencies and required to ensure compliance with all applicable Federal, State, and Local statutes, laws, codes, regulations, policies, procedures, ordinances, standards, specifications, performance standards, and guidelines, applicable to the CONSULTANT’s services and work product. The CONSULTANT is responsible for supplying and providing all necessary equipment and protective clothing in accordance with the CITY’s standards.

If applicable, the CONSULTANT shall inspect the project area as necessary prior to beginning work. The CONSULTANT shall maintain a set of project files that shall be indexed in accordance with Caltrans Design Manual.

The CONSULTANT shall prepare the required calculations and reports according to the CITY’s standards and requirements for roadway and storm drainage design.

The CONSULTANT shall have the ability to respond in a timely and cost-efficient manner to the CITY’s requests for additional information or clarification during the bidding and construction process.

The CONSULTANT may perform some of the Work pursuant to funding provided to the CITY by various federal and/or state grant and/or loan agreement(s) that impose certain funding conditions on the CITY and its sub-recipients (the “Funding Conditions”). For any such Work, if the CITY informs the CONSULTANT about the Funding Conditions, then the CONSULTANT agrees to determine, comply with and be subject to the Funding Conditions that apply to the CITY’s Consultants and Consultants performing the Work, including, but not limited to, provisions concerning record keeping, retention and inspection, audits, state or federal government’s right to inspect CONSULTANT’s work, nondiscrimination, workers’ compensation insurance, drug-free workplace certification, and, compliance with the Americans with Disabilities Act and related State laws.

If a Task Order is to be funded by Federal or Caltrans funds the CONSULTANT shall comply with applicable requirements within Chapter 10 of the Caltrans Local Assistance Procedures Manual (LAPM).

SCHEDULE FOR PERFORMANCE
For general engineering services the CONSULTANT shall perform the services under this AGREEMENT as expeditiously as is consistent with generally accepted standards of professional skill and care and the orderly progress of work.

All project specific services performed under an awarded contract will require the CONSULTANT to develop a project schedule as part of the CONSULTANT’s proposal and authorized Task Order.

CONSULTANT PROJECT MANAGER

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
The CONSULTANT’s shall designate a Project Manager who shall serve as the City Engineer and be a Registered Professional Civil Engineer licensed in the State of California in good standing with the California State Board for Professional Engineers, Land Surveyors, and Geologists at all times during the Agreement period, to perform the tasks described in this RFQ, and shall be currently employed by the CONSULTANT. The CONSULTANT’s Project Manager shall have a documented minimum ten (10) years of demonstrated design experience, including review, and signing analytical results, plans, designs, specifications, estimates, notes, calculations, analysis, reports, graphics, drawings, visual simulations, studies, product, data, manuals, details, other documents, other items, and deliverables under this Contract.

In addition to other specified responsibilities, the CONSULTANT’s Project Manager shall be responsible for all matters related to the CONSULTANT’s personnel, Subconsultants, and the CONSULTANT’s and Subconsultants’ operations including, but not limited to, the following:

1. Ensuring that deliverables are clearly defined, measurable, attainable, realistic, and timebound; and that the deliverables satisfy applicable design criteria.

2. Supervising, reviewing, monitoring, training, and directing the CONSULTANT’s and SubConsultants’ personnel.

3. Assigning qualified personnel to complete the required Task Order work as specified on an “as-needed” basis in coordination with the CITY’s Contract Administrator.

4. Administering personnel actions for the CONSULTANT’s personnel and ensuring appropriate actions taken for Subconsultant personnel.

5. Maintaining and submitting organized project files for record tracking and auditing.

6. Developing, organizing, facilitating, and attending scheduled coordination meetings, and preparation and distribution of meeting minutes.

7. Implementing and maintaining quality control procedures to manage conflicts, ensure product accuracy, and identify critical reviews and milestones.

8. Assuring that all applicable safety measures are in place.

9. Providing invoices in a timely manner and providing monthly Contract expenditures.

10. Reviewing invoices for accuracy and completion before billing to the CITY.

11. Managing Subconsultants.

12. Managing overall budget for Contract and provide report to the CITY’s Contract Administrator.

13. Monitoring and maintaining required DBE involvement.

14. Ensuring compliance with the provisions in this Contract and all specific Task Order requirements.

15. Monitoring the health and safety of personnel working in a hazardous environment in accordance with all applicable Federal, State, and Local regulations.

16. Providing knowledge, experience, and familiarity with prevailing wage issues and requirements in State of California.

GENERAL PERSONNEL REQUIREMENTS
The CONSULTANT‘s personnel shall be capable, competent, and experienced in performing the types of work in this Contract with minimal instruction. Personnel skill level should match the specific job classifications, as set forth herein or in the CONSULTANT‘s Cost Proposal and task complexity. The CONSULTANT‘s personnel shall be knowledgeable about, and comply with, all applicable Federal, State, and Local laws and regulations.

The CONSULTANT‘s personnel may be asked to attend certain special training if recommended by the CITY’s Contract Administrator. On such occasions, with the approval of the CITY’s Contract Administrator, the CITY shall compensate the CONSULTANT for the CONSULTANT‘s actual cost for time spent in training only. All other costs, fees, and expenses associated with the training, including any

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
transportation costs and training fees, shall be the CONSULTANT ‘s responsibility. In addition, services to train the CITY’s personnel shall not be provided by the CONSULTANT under this Contract.

The CONSULTANT‘s personnel shall typically be assigned to and remain on specific CITY projects/deliverables until completion and acceptance of the project/deliverables by the CITY. Personnel assigned by the CONSULTANT shall be available at the start of a Task Order and after acceptance of the project/deliverable by the CITY.

In responding to a CITY Task Order, and in consultation with the CITY’s Contract Administrator, the CONSULTANT’s Project Manager shall identify the specific individuals proposed for the task and their job assignments. The CONSULTANT shall provide documentation that proposed personnel meet the appropriate minimum qualifications as required by this Contract.

After the CITY’s Contract Administrator’s approval of the CONSULTANT’s personnel proposal and finalization of the Agreement or Task Order, the CONSULTANT may not add or substitute personnel without the CITY’s Contract Administrator’s prior written approval. The removal or replacement of personnel or subcontractors without the written approval from the CITY’s Contract Administrator shall be violation of the Agreement and may result in termination of the Contract.

The CONSULTANT is required to submit a written request and obtain the CITY’s Contract Administrator’s prior written approval for any substitutions, additions, alterations, or modifications to the CONSULTANT’s originally proposed personnel and project organization, as depicted on the proposed CONSULTANT’s Organization Chart or the CONSULTANT’s cost proposals. The substitute personnel shall have the same job classification, as set forth herein or in the CONSULTANT’s Cost Proposal does not exceed the billing rate and meet or exceed the qualifications and experience level of the previously assigned personnel, at no additional cost to the CITY. The substitute personnel shall have significant experience in the work involving a similar project for at a minimum two (2) previous projects, unless otherwise approved by the CITY’s Contract Administrator.

Resumes containing the qualifications and experience of the CONSULTANT‘s and Subconsultant’s personnel, which include existing, additional, and substitute personnel, and copies of their minimum required certifications, shall be provided by the CONSULTANT upon request.

The CITY’s Contract Administrator may interview the CONSULTANT‘s personnel for the qualifications and experience. The CITY’s Contract Administrator’s decision to select the CONSULTANT‘s personnel shall be binding to the CONSULTANT and its Subconsultants. The CONSULTANT shall provide adequate qualified personnel to be interviewed by the CITY’s Contract Administrator within one (1) week of receiving the request.

The CITY’s Contract Administrator shall evaluate the adequacy (quality and quantity) of the work performed by the CONSULTANT‘s personnel and determine whether the deliverables satisfy the agencies’ specified design criteria. The CITY’s Contract Administrator may reject any CONSULTANT personnel determined by the CITY’s Contract Administrator to lack the minimum qualifications. If at any time the level of performance is below expectations, the CITY’s Contract Administrator may direct the CONSULTANT to immediately remove the CONSULTANT’s personnel from the project specified in a Task Order and request another qualified person be assigned as needed. The substitute personnel shall meet the qualifications required by this Contract for performance of the work as demonstrated by a resume and copies of current certifications submitted by the CONSULTANT. Substitute personnel shall receive prior written approval from the CITY’s Contract Administrator. Invoices with charges for personnel not pre-approved by the CITY’s Contract Administrator for work on the Contract and for each Task Order shall not be reimbursed.

When an assigned CONSULTANT staff member is on approved leave and services are needed by the CITY’s Contract Administrator, the CONSULTANT’s Project Manager shall provide a substitute

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
employee until the assigned employee returns to work from the approved leave. The substitute personnel shall have the same job classification, as set forth herein or in the CONSULTANT’s Cost Proposal, not exceed the billing rate and meet or exceed the qualifications and experience level of the previously assigned personnel, at no additional cost to the CITY. Substitute personnel shall receive prior written approval from the CITY’s Contract Administrator to work on this Contract.

Other project personnel not identified on the CONSULTANT’s cost proposal, including, but not limited to, field and laboratory technicians, shall also satisfy appropriate minimum qualifications for assigned Task Orders. CITY prior written approval is required for all personnel not identified on the CONSULTANT’s organization chart or the CONSULTANT’s cost proposals before providing services under this Contract.

Key CONSULTANT personnel are expected in the Yuba/Sutter area to work for extended period(s) of time, the CONSULTANT shall either relocate the personnel or make every effort to hire local persons.

The CITY shall not reimburse the CONSULTANT for costs to relocate its personnel to the service area of this Contract. The CITY shall not reimburse the CONSULTANT for per diem costs, unless preapproved by the CITY’s Contract Administrator. The CITY shall not reimburse the CONSULTANT for out-of-state travel without prior written approval from the CITY’s Contract Administrator.

DELIVERABLES
As agreed, upon by the CITY and the CONSULTANT in this scope of services section and specified on any project specific Task Order.

SCHEDULE
General Engineering work will be performed in a timely manner. Project specific work will be per a schedule agreed upon the CITY and the CONSULTANT in the Task Order for the project. The work shall not be performed when conditions prevent a safe and efficient operation.

The CONSULTANT shall begin the required work within two (2) working days after receiving a fully executed Task Order from the CITY’s Contract Administrator to the City Engineer, or on the date specified in the Task Order. Some work, however, may require the CONSULTANT’s personnel to mobilize within twenty-four (24) -hours of notifications. Once the work begins, the work shall be performed diligently until all required work has been completed to the satisfaction of the CITY’s Contract Administrator.

If the CITY determines that the work cannot be performed during normal business hours or the work is necessary at off hours to avoid danger to life or property, the CONSULTANT’s operations may be restricted to specific hours during the week. Night work may be required on projects involving high traffic areas. The CITY’s construction contractor’s operations may be restricted to specific hours during the week, which shall become the normal workday for the CONSULTANT’s personnel. Changes in hours or schedules shall be documented by amendment of the Task Orders. Any shift differential rate pay shall be reimbursed in accordance with the applicable Department of Industrial Relations (DIR) determination.

OTHER REQUIREMENTS
The CONSULTANT shall begin the required work within two (2) working days after receiving a fully executed Task Order from the CITY’s Contract Administrator to the CONSULTANT’s Project Manager or on the date specified in the Task Order. Some work, however, may require the CONSULTANT’s personnel to mobilize within twenty-four (24) hours of notification. Once the work begins, the work shall be performed diligently until all required work has been completed to the satisfaction of the CITY’s Contract Administrator.

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
The CONSULTANT’s Project Manager may direct the CONSULTANT’s employees to work overtime to meet Task Order schedules at the request of the CITY’s Contract Administrator. Any billed overtime shall be pre-approved by the CITY’s Contract Administrator. Overtime shall be worked only when directed in writing by the CITY’s Contract Administrator and specifically required by the Task Order and shall only be paid to persons covered by the Fair Labor Standards Act.

The CONSULTANT’s personnel may be required to sign a confidentiality and nondisclosure agreement.

The CITY shall not incur costs beyond the funding commitments in the Contract and each Task Order.

If the CONSULTANT anticipates that funding for work will be insufficient to complete work, the CONSULTANT shall promptly notify the CITY’s Contract Administrator.

The CONSULTANT may claim reimbursement for providing equipment or supplies. However, such claimed costs shall be in compliance with 48 Code of Federal Regulation (CFR), Chapter 1, Part 31 (Federal Acquisition Regulation – FAR cost principles) and 2 CFR, Part 200, and be consistent with the CONSULTANT’s company-wide allocation policies and charging practices with all agencies, including federal government, state governments, local agencies, and private agencies.

The CONSULTANT shall have and provide adequate office equipment and supplies to complete the work required by this Contract. Such equipment and supplies shall include, but not be limited to, the following:
a) Office Supplies.
b) Computers with appropriate software, printers, plotters, fax machines, calculators, data collectors and their necessary attachments and accessories. c) Data processing systems, software packages, reference materials, or other tools, including hardware and software, used in providing transportation engineering deliverables. This includes, but not be limited to, the following:
i) Microsoft Office Suite productivity software or City-approved equivalent that includes word processing, spreadsheet, and presentation (e.g., Word, Excel, PowerPoint)
ii) Adobe Acrobat Professional document editor and viewer software, (version 9 or later) or City-approved equivalent.
iii) Autodesk AutoCAD 3D (version 2019 or later) Computer Aided Design (CAD) software or City-approved equivalent.

The CONSULTANT shall provide all necessary tools, instruments, equipment, materials, supplies, and safety equipment required to perform the work identified in each Task Order and this Contract accurately, efficiently, and safely. The CONSULTANT’s personnel shall be fully trained in the use of such necessary tools, instruments, equipment, materials, supplies, and safety equipment. The CONSULTANT shall not be reimbursed separately for tools of the trade, which may include, but not be limited to, the above-mentioned equipment.

Unless otherwise specified in this Contract, the CONSULTANT shall provide all materials to complete the required work in accordance with the delivery schedule and cost estimate outlined in each Task Order. The CITY may provide the CONSULTANT with an AutoCAD file of the topographic survey of the project areas, notes from surveys and any inspections and maps by the CITY of the existing utilities in the project area.

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

EXHIBIT B

SCHEDULE OF FEES

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

EXHIBIT C

INSURANCE REQUIREMENTS
The CONSULTANT shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the CONSULTANT, his/her agents, representatives, employees, or subcontractors.

MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as: provisions:

1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than two million dollars ($2,000,000) per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT the CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than two million dollars ($2,000,000) per accident for bodily injury and property damage.

3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than two million dollars ($2,000,000) per accident for bodily injury or disease.

4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than two million dollars ($2,000,000) per occurrence or claim, two million dollars ($2,000,000) aggregate.

If the CONSULTANT maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).

Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees, and volunteers. Any insurance or selfinsurance maintained by the CITY, its officers, officials, employees, or volunteers shall be excess of the CONSULTANT’s insurance and shall not contribute with it.

Notice of Cancellation

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the CITY.

Waiver of Subrogation
The CONSULTANT hereby grants to the CITY a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the CITY by virtue of the payment of any loss under such insurance. The CONSULTANT agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the CITY. The CITY may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the CITY.

Claims Made Policies
If any of the required policies provide claims-made coverage:

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the CONSULTANT must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

Verification of Coverage
The CONSULTANT shall furnish the CITY with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the CITY before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Special Risks or Circumstances
The CITY reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

EXHIBIT D

DISCLOSURE OF CONFLICT OF INTEREST
YES
*
NO
1 Are you currently in litigation with the City of Marysville or any of its agents? □ □
2 Do you represent any firm, organization or person who is in litigation with the City of Marysville?
□ □
3 Do you currently represent or perform work for any clients who do business with the City of Marysville? □ □
4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Marysville, or in a business which is in litigation with the City of Marysville?
□ □
5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Marysville employee who has any significant role in the subject matter of this service? □ □ 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? □ □
* If the answer to any question is yes, please explain in full below. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ _____________
______________________________
Signature Date
_________________________________
(Name)
_________________________________
(Company)
_________________________________
(Address)
_________________________________
(City, State, Zip)

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES

EXHIBIT E

APPENDICES A, E OF THE TITLE VI ASSURANCES

APPENDIX A
During the performance of this Agreement, the Contractor, for itself, its assignees, and successors in interest (hereinafter collectively referred to as the CONSULTANT) agrees as follows:
a. Compliance with Regulations: The CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this Agreement.
b. Nondiscrimination: The CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements 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 Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by the CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Reports: The CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives.

Where any information required of the CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, the CONSULTANT shall so certify to the recipient or FHWA as appropriate and shall set forth what efforts the CONSULTANT has made to obtain the information.
i. Sanctions for Noncompliance: In the event of the CONSULTANT’s noncompliance with the nondiscrimination provisions of this Agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to withholding of payments to the CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or ii. cancellation, termination, or suspension of the Agreement, in whole or in part. e. Incorporation of Provisions: The CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.

The CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event the CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, the CONSULTANT may request the recipient enter into such litigation to protect the interests of the State,

AGREEMENT

CITY OF MARYSVILLE, CALIFORNIA

CONSULTANT SERVICES
and, in addition, the CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.

APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (herein ‘after referred to as the “CONSULTANT”) agrees to comply with the following nondiscrimination statutes and authorities, including, but not limited to:

Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, subrecipients and contractors, whether such programs or activities are Federally funded or not);Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).