Written materials relating to an item on this agenda that are distributed to the legislative bodies within 72 hours before the item is to be considered at its regularly scheduled meeting will be made available for public inspection at the City Clerk’s Office, 300 West Third Street 4th Floor during customary business hours. Agenda reports are also on the City of Oxnard web site at www.oxnard.org.
In compliance with the Americans with Disabilities Act, if you require special assistance to participate in a meeting, please contact the City Clerk’s Office at 385-7803. Notice at least 72 hours prior to the meeting will enable the City to reasonably arrange for your accessibility to the meeting.
Agenda Item Time Estimates include: (Minutes for Presentation + Council Discussion + Public Comment)
AGENDA
OXNARD CITY COUNCIL
OXNARD COMMUNITY DEVELOPMENT COMMISSION SUCCESSOR AGENCY
OXNARD FINANCING AUTHORITY
OXNARD HOUSING AUTHORITY
Meeting Location: Council Chambers, 305 West Third Street February 21, 2023
Closed Session - 5:30 PM
Regular Meeting - 6:00 PM
Zoom details to call-in for public comment during a meeting:
1. Dial Phone Number: (888) 475-4499
2. Enter Meeting ID: 884 8156 7296
3. Passcode: 373181
If you wish to speak during public comments or a particular item on the agenda, please sign-on by following the zoom call-in steps listed above. Once the presiding officer calls for public speakers, press *9 to raise your hand to inform the City Clerk you would like to speak during the public speaking section for that particular item on the agenda, while in the zoom waiting room. Press *6 when asked to unmute. Listen to the instructions provided virtually the phone while on hold in the zoom waiting room. Please note that there is a slight time delay when viewing the meeting via television.
IN ACCORDANCE WITH ASSEMBLY BILL 361 AND IN RESPONSE TO THE DECLARED STATE AND
LOCAL EMERGENCIES DUE TO THE NOVEL CORONAVIRUS, THE LEGISLATIVE BODY WILL MEET IN- PERSON AND REMOTELY. TO PARTICIPATE REMOTELY VISIT WWW.OXNARD.ORG.
To find out how you may provide public comment, please refer to the instructions below or at www.https://www.oxnard.org/city-meetings/.
The public may view the meeting from home on Spectrum channel 10, Frontier channel 35, or YouTube at Youtube.com/oxnardnews.
Video recordings of the meeting are typically available online following the meeting at the City’s website at www.oxnard.org/city- meetings.
*Please see the link for the Measure M pre-recorded presentation video for each item listed on this agenda.
YOU MAY PARTICIPATE IN THE MEETING IN THE FOLLOWING WAYS:
1. ATTEND THE MEETING AT THE LOCATION LISTED ABOVE: Submit a speaker card to the City Clerk.
2. EMAIL COMMENTS OR SIGN UP TO SPEAK REMOTELY BEFORE THE MEETING
a. Submit a request to speak remotely by no later than 3 p.m. on the day of the meeting by using the form available at www.oxnard.org/citymeetings.
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b. Submit an email to [email protected] no later than 3 p.m. on the day of the meeting (indicate the agenda item number in the subject line). All email correspondence will be forwarded to the legislative body prior to the start of the meeting and made part of the legislative record.
c. Contact the City Clerk’s Office at (805) 385-7803 to submit your request.
3. PROVIDING PUBLIC COMMENTS REMOTELY DURING THE MEETING
a. To provide public comment during the meeting dial (888) 475-4499 and enter the Meeting ID and Passcode listed above as the Zoom details for this meeting. When the presiding officer announces the particular item on the agenda you want to speak on, press *9 to raise your hand while in the zoom waiting room. Once called on, press *6 to unmute your phone.
b. Public comments on agenda items will be taken following the announcement of the item. After the item is announced, members of the public may register or otherwise be recognized for the purpose of providing public comment.
Please review the Zoom instructions on the registration page to help ensure there are no technical difficulties during your comments and help you understand public comment procedures using Zoom. Detailed participation instructions can be found at www.oxnard.org/city-meetings.
In the event of a disruption which prevents a legislative body of the City of Oxnard from broadcasting a meeting using a call- in option or internet-based service option, or in the event of a disruption within the City’s control which prevents members of the public from offering public comment using the call-in option or internet-based service option, the legislative body shall take no further action on items appearing on a meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. However, if any of the broadcast options are disrupted, but any of the other broadcast options is still available to the public, the legislative body may take further action on items appearing on a meeting agenda without waiting for the disrupted broadcast option(s) to be restored.
* The City has filed pre-election and post-election lawsuits regarding the validity of Measure M.
A. ROLL CALL, POSTING OF AGENDA
THE FOLLOWING LEGISLATIVE BODIES ARE MEETING: City Council and Housing Authority.
B. PUBLIC COMMENTS ON CLOSED SESSION ITEMS
At this time, a person may address the legislative body only on matters appearing on the closed session agenda. The presiding officer shall limit public comments to three minutes.
C. CLOSED SESSION (5:30 PM)
1. CONFERENCE WITH REAL PROPERTY NEGOTIATORS – (Government Code section 54956.8)
Property: 411 West Pleasant Valley Road (APN 205-0-320-225) Agency Negotiator: Emilio Ramirez, Housing Director; Ashley Golden, Assistant City Manager Negotiating Party: Yong Lee; Soo J. Lee; Soo B. Lee
Under Negotiation: Price and terms of payment
Legislative Body: City Council
2. CONFERENCE WITH REAL PROPERTY NEGOTIATORS – (Government Code section 54956.8)
Property: 451 West Pleasant Valley Road (APN 205-0-320-235) Agency Negotiator: Emilio Ramirez, Housing Director; Ashley Golden, Assistant City Manager Negotiating Party: Norma Rushing
Under Negotiation: Price and terms of payment
Legislative Body: City Council
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D. OPENING CEREMONIES (6:00 PM)
Pledge of allegiance to the flag of the United States.
E. PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA
A person may address the legislative body only on matters not appearing on the agenda and within the subject matter jurisdiction of the legislative body. Speaker requests shall be submitted as set forth on the first page of this agenda. Speakers are limited to three minutes. After 30 minutes, if all speakers have not had the opportunity to speak, the remaining speakers will be given an opportunity to speak prior to adjournment of the meeting. The legislative body cannot enter into a detailed discussion or take action on any items presented during public comments at this time. Such items may only be referred to the City Manager/Executive Director/Secretary for administrative action or scheduled on a subsequent agenda for discussion. Persons wishing to speak on public hearing items should do so at the time of the hearing.
F. REPORT OF CITY MANAGER/EXECUTIVE DIRECTOR/SECRETARY
The City Manager/Executive Director/Secretary shall report on items of interest to the legislative body occurring since the last meeting. The legislative body cannot enter into detailed discussion or take action on any item presented during this report. Such items may only be referred to the City Manager/Executive Director/Secretary for administrative action or scheduled on a subsequent agenda for discussion.
1. Public Works Department
SUBJECT: Reconsideration of Local Emergency Due to Ongoing Drought Conditions.
RECOMMENDATION: That the City Council adopt a resolution confirming the need to continue the local emergency declared on May 17, 2022, due to drought conditions and lack of adequate water supply.
(This item is not subject to the California Environmental Quality Act pursuant to Public Resources Code section 21080(b)(4)).
Legislative Body: City Council
Contact: Michael Wolfe, Stephen Fischer, (805) 385-8055, (805) 385-7483 G. CITY COUNCIL/HOUSING AUTHORITY/SUCCESSOR AGENCY/FINANCING AUTHORITY
BUSINESS/COMMITTEE REPORTS
At this time, a member of the legislative body may make a brief announcement, or make a brief report on his or her activities. Further, members of the legislative body may request to schedule consideration of whether to place an item on a future agenda. The legislative body cannot enter into detailed discussion or take action on any item presented during this report. The member's report shall not exceed three minutes, unless additional time is granted by the presiding officer.
1. City Manager Department
SUBJECT: Appointment of Members to Serve on the City's CAG's. (5 minutes)
RECOMMENDATION: That the Mayor, with the approval of the City Council, make the following appointments:
1. To Senior Services Commission: Clark Owens (D1);
2. To Community Relations Commission: Helaine Stallion (D1) and Tiffany Lopez (at large);
3. To Cultural Arts Commission: Teodoro Lopez (D1);
4. To Parks, Recreation and Community Services Commission: Miguel Fernandez (D1); and
5. To Planning Commission: Steven Nash (D1).
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Please click the following link to view the required Measure M pre-recorded presentation video: https://youtu.be/86I-XAZEhEY
Legislative Body: City Council
Contact: Shiri Klima, (805) 385-7487
H. REVIEW OF INFORMATION/CONSENT AGENDA
The members of the legislative body will consider whether to remove Information/Consent Agenda items for discussion later during the meeting.
I. PUBLIC COMMENTS ON INFORMATION/CONSENT AGENDA
At this time, a person may address the legislative body only on matters appearing on the information/consent agenda. The presiding officer shall limit public comments to three minutes.
J. INFORMATION/CONSENT AGENDA
1. City Clerk Department
SUBJECT: Approval of Minutes.
RECOMMENDATION: That the City Council approve the minutes of the January 17, 2023 regular meeting as presented.
Legislative Body: City Council
Contact: Rose Chaparro, (805) 385-7805
2. City Manager Department
SUBJECT: List of City Manager Approved Contracts - Informational Only.
RECOMMENDATION: That the City Council receive and file the list of City Manager approved contracts for the period June 1, 2022 through December 31, 2022.
Legislative Body: City Council
Contact: Alexander Nguyen, (805) 385-7430
3. Public Works Department
SUBJECT: Agreement 32300182 with MERITO Foundation, Agreement 32300196 with Reality Improv Connection, Inc. and Agreement 32300195 with KTU&A, Inc. for the Oxnard Beautification and Clean-up Program, Project C2317.
RECOMMENDATION: That the City Council approve and authorize the following for a total of $734,832 in Project funds for the Oxnard Beautification and Clean-up Program:
1. A Professional Services Agreement with the MERITO Foundation in the amount of $219,001 for a term through June 30, 2024 for the Project;
2. A Professional Services Agreement with Reality Improv Connection, Inc. in the amount of $245,948 for a term through June 30, 2024 for the Project; and
3. A Professional Services Agreement with KTU&A, Inc. in the amount of $269,883 for a term through June 30, 2024 for the Project.
(Recommendation 1 is categorically exempt from the California Environmental Quality Act pursuant to Title 14 of the California Code of Regulations Section 15304(b); and Recommendations 2 and 3 are not projects subject to CEQA.)
(This item did not originate in Committee as this is a grant-funded project.) Legislative Body: City Council
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Contact: Michael Wolfe, (805) 385-8055
4. Housing Department
SUBJECT: Plaza Vista Apartments Drain Line and Electrical Panel Project.
RECOMMENDATION: That the Board of Commissioners of the Housing Authority of the City of Oxnard approve and authorize execution of the following firm-fixed price contracts:
1. Agreement number A-8512 in the amount of $267,472.92 with Oscalibur Plumbing, Inc to replace the plumbing drain line at the Plaza Vista public housing site using funds appropriated from the 2019 Capital Fund grant; and
2. Agreement number A-8510 in the amount of $341,857.79 to replace the main electrical panels at the Plaza Vista public housing site using funds appropriated from the 2019 Capital Fund grant.
(The Community Services, Public Safety, Housing & Development Committee approved 3-0.) Legislative Body: Housing Authority
Contact: Emilio Ramirez, (805) 385-8094
5. City Manager Department
SUBJECT: Authorize the Programming of Additional Ongoing Funding for Park Maintenance Projects and the Approval of Two New One-Time Projects into Measure O.
RECOMMENDATION: That the City Council authorize the programming of the following additional ongoing funding for park maintenance projects and the approval of two new projects into Measure O:
1. Increase funding for existing Measure O project MO5701 (College Park Maintenance) from $838,524 annual budget by $27,000 to $865,524 annual budget and existing project MO5702 (East Village Park Operating Maintenance) from $91,301 annual budget by $3,000 to $94,301 annual budget;
2. Approve the following new Measure O project with associated one-time funding: Tier 2 Seismic Evaluation for the Performing Arts Center - $200,000; and
3. Approve the following new Measure O project with associated one-time funding: Facilities Assessment - $340,000.
(The Measure O Citizen Oversight Committee reviewed this item on January 26, 2023, and determined that it should proceed to Council).
Legislative Body: City Council
Contact: Shiri Klima, (805) 385-7487
6. City Treasurer
SUBJECT: General Banking Services Agreement.
RECOMMENDATION: That the City Council receive and file the agreement with Bank of America in an estimated amount of $500,000 for an initial term of 3 years with an option to renew for 5 one- year periods.
(Finance and Governance Committee approved 3-0.)
Legislative Body: City Council
Contact: Phillip Molina, (805) 385-7808
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K. PUBLIC HEARINGS
1. Housing Department
SUBJECT: Substantial Amendment to the Fiscal Year 2020-2021 and 2022-2023 Annual Action Plans. (30 minutes)
RECOMMENDATION: That the City Council:
1. Conduct a public hearing and receive comments related to the Substantial Amendment of the Fiscal Year 2020-2021 and 2022-2023 Annual Action Plans;
2. Approve a Substantial Amendment to the Fiscal Year 2020-2021 and 2022-2023 Annual Action Plans, reallocating Community Development Block Grant, Community Development Block Grant – Coronavirus, and HOME Investment Partnership funding;
3. Authorize the City Manager and his designees, to execute the required applications, certifications, and other pertinent documents for the submission of the Amendments to the United States Department of Housing and Urban Development;
4. Authorize the City Manager and his designees, to execute the appropriate agreements with subgrantees, and to adjust any of the funding activity, not to exceed ten percent, if the programs require more or less funding to meet their objectives; and
5. Authorize the City Manager and his designees, to incorporate any recommended changes resulting from public input to each of the aforementioned plans, as directed by the City Council, including amending any grant revenue and/or expenditure budgets to reflect the reallocations described in the 2022-2023 and 2020-21 mid-year budgets.
(This item did not originate in Committee.)
Please click the following link to view the required Measure M pre-recorded presentation video: https://youtu.be/3tT35nVwou8
Legislative Body: City Council
Contact: Emilio Ramirez, (805) 385-8094
L. REPORTS
1. Finance Department
SUBJECT: FY 21-22 Annual Comprehensive Financial Report and Summary Presentation. (40 minutes)
RECOMMENDATION: That the City Council receive the FY 2021-22 Comprehensive Annual Financial Report (CAFR) and summary presentation from the City's external financial auditors, Eadie + Payne, LLP.
(This item is scheduled to be presented to the Finance and Governance Committee on February 14, 2023.)
(Presentation will be live upon consultant's request.)
Legislative Body: City Council
Contact: Denise Olson, (805) 200-5400
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2. Public Works Department
SUBJECT: Carryover of Encumbered Funds from Fiscal Year 2021-22 and Amended Budget Appropriations for Public Works for Fiscal Year 2022-23. (20 minutes)
RECOMMENDATION: That the City Council approve:
1. The carryover of encumbered funds from Fiscal Year 2021-22 to Fiscal Year 2022-23 from available fund balances in the amounts of: A) $957,184 to the General Fund (101); B) $232,001 to the Wastewater Fund (611): and C) $115,181 to the Environmental Resources Fund (631) due to supply chain delays;
2. Fiscal Year 2022-23 budget appropriations from available fund balances in the amount of $115,811 to the Special Districts Fund (120) for new work and budget appropriation transfer of $7,300 from the General Fund (101) to Special Districts Fund (120) as the General Benefit contribution for applicable Districts; and
3. A Fiscal Year 2022-23 budget un-appropriation in the amount of $5,175,000 from the Water Bond Fund (609).
(The Finance and Governance Committee approved 3-0 and the Public Works and Transportation Committee approved 2-0.)
(This item is not subject to the California Environmental Quality Act.)
Please click the following link to view the required Measure M pre-recorded presentation video:
https://youtu.be/rEe5hhUsO5A
Legislative Body: City Council
Contact: Michael Wolfe, (805) 385-8055
3. Housing Department
SUBJECT: Authorize the Housing Director to Execute HOME and CDBG Loan Agreements with Peoples’ Self-Help Housing for Cypress Place at Garden City Phase I, a 90 Unit Affordable Rental Housing Project. (10 minutes)
RECOMMENDATION: That the City Council:
1. Adopt a resolution authorizing the Housing Director to execute a $1,600,000 HOME Loan Agreement and a $1,500,000 CDBG Loan Agreement, and any and all related documents thereto, with Peoples’ Self-Help Housing for the construction of Phase I of Cypress Place at Garden City, a ninety (90) unit affordable rental housing project located at 5536 and 5482 Cypress Road; and
2. Find that approval of the resolution and the acts authorized therein are exempt from the California Environmental Quality Act (CEQA) pursuant to Public Resources Code sections 21159.21 and 21159.23.
(This item did not originate in Committee.)
Please click the following link to view the required Measure M pre-recorded presentation video: https://youtu.be/sYn_BdoPikw
Legislative Body: City Council
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Contact: Emilio Ramirez, (805) 385-8094
4. Information Technology Department
SUBJECT: Oxnard 311 - Performance Update Report. (20 minutes)
RECOMMENDATION: That the City Council receive a City of Oxnard 311 constituent relationship management performance update for the period of performance year six (May 1, 2021, through April 30, 2022) and the first half of performance year seven (May 1, 2022, through October 31, 2022).
(Community Services, Public Safety, Housing & Development Committee approved 3-0.)
Please click the following link to view the required Measure M pre-recorded presentation video: https://youtu.be/rLPX659PYAI
Legislative Body: City Council
Contact: Helen Miller, (805)385-7446
5. Finance Department
SUBJECT: Discussion of the State Auditor’s 2021 Fiscal Health Ranking of California Cities. (10 minutes)
RECOMMENDATION: That the City Council receive the State Auditor's 2021 Fiscal Health Ranking of California Cities.
(This item was presented to the Finance and Governance Committee on January 10, 2023.)
Please click the following link to view the required Measure M pre-recorded presentation video: https://youtu.be/gbDJR6hhG44
Legislative Body: City Council
Contact: Denise Olson, (805) 200-5400
M. ADJOURNMENT
8 CITY COUNCIL AGENDA REPORT
REPORT OF CITY MANAGER/EXECUTIVE
DIRECTOR/SECRETARY
AGENDA ITEM NO. F.1
DATE: February 21, 2023
TO: City Council
FROM: Michael Wolfe, Public Works Director, (805) 385-8055, [email protected] Stephen Fischer, City Attorney, (805) 385-7483, [email protected]
SUBJECT: Reconsideration of Local Emergency Due to Ongoing Drought Conditions.
RECOMMENDATION
That the City Council adopt a resolution confirming the need to continue the local emergency declared on May 17, 2022, due to drought conditions and lack of adequate water supply.
(This item is not subject to the California Environmental Quality Act pursuant to Public Resources Code section 21080(b)(4)).
BACKGROUND
On May 17, 2022, the City Council adopted Resolution 15,568 proclaiming a local emergency due to drought conditions and lack of adequate water supply, and adopted Resolution 15,569 establishing new mandatory conservation measures.
On June 30, 2022, the City Council adopted Resolution 15,628 ratifying an order issued by the Director of Emergency Services pertaining to the local emergency, and confirming the need to continue the local emergency pursuant to Government Code Section 8630(c).
On July 28, 2022, the City Council adopted Resolution 15,609 reconfirming the need to continue the local emergency pursuant to Government Code Section 8630(c).
On September 20, 2022, the City Council adopted Resolution 15,631 reconfirming the need to continue the local emergency pursuant to Government Code Section 8630(c). Furthermore, City Council adopted Resolution 15,632 ratifying an order issued by the Director of Emergency Services pertaining to the local emergency.
On November 15, 2022, the City Council adopted Resolution 15,646 reconfirming the need to continue the local emergency pursuant to Government Code Section 8630(c).
On January 3, 2023, the City Council adopted Resolution 15,658 reconfirming the need to continue the local emergency pursuant to Government Code Section 8630(c).
By adopting the resolution attached to this staff report, the City Council would once again confirm the need to continue the local emergency. If Council adopts the resolution, staff will return to the Council within 60 days of adoption for reconsideration of the emergency.
STRATEGIC PRIORITIES
9 This agenda item supports the Infrastructure and Natural Resources strategy. The purpose of the Infrastructure and Natural Resources strategy is to preserve and improve our roads, utilities, parks, trees, water supply and natural resources through effective planning, prioritization, and an equitable and efficient use of available funding.
FINANCIAL IMPACT
There is no direct financial impact.
COMMITTEE OUTCOME
This item did not originate in Committee.
Prepared by: Michelle McCarron, Assistant City Attorney
ATTACHMENTS
1. Resolution and DO 22-04
2. Adopted Resolution 15,568 (dated 5-17-22)
3. Adopted Resolution 15,569 (dated 5-17-22)
4. Adopted Resolution 15,628 (dated 6-30-22)
5. Adopted Resolution 15,609 (dated 7-28-22)
6. Adopted Resolution 15,631 (dated 9-20-22)
7. Adopted Resolution 15,632 (dated 9-20-22)
8. Adopted Resolution 15,646 (dated 11-15-22)
9. Adopted Resolution 15,658 (dated 1-3-23)
10 CITY COUNCIL OF THE CITY OF OXNARDRESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OXNARDCONFIRMING THE NEED TO CONTINUE THE LOCAL EMERGENCYPURSUANT TO GOVERNMENT CODE SECTION 8630(c) WHEREAS, Government Code section 8630 and Chapter 6 of the Oxnard CityCode (“OCC”) empower the City Manager of the City of Oxnard (“City”), acting in thecapacity of the Director of Emergency Services, to request the City Council to proclaimthe existence of a local emergency when drought conditions threaten the safety of personsor property within the City; and WHEREAS, on May 17, 2022, the City Council adopted Resolution 15,568which proclaimed the existence of a local emergency due to drought conditions and lackof adequate water supply; and WHEREAS, also on May 17, 2022, the City Council adopted Resolution 15,569establishing new mandatory water conservation measures; and WHEREAS, on June 30, 2022, the City Council adopted Resolution 15,628which determined that there was a need to continue the local emergency due to continueddrought conditions and lack of adequate water supply; and WHEREAS, on July 28, 2022, the City Council adopted Resolution 15,609 whichdetermined that there was a need to continue the local emergency due to continueddrought conditions and lack of adequate water supply; and WHEREAS, on September 20, 2022, the City Council adopted Resolution 15,631which determined that there was a need to continue the local emergency due to continueddrought conditions and lack of adequate water supply; and WHEREAS, on November 15, 2022, the City Council adopted Resolution 15,646which determined that there was a need to continue the local emergency due to continueddrought conditions and lack of adequate water supply; and WHEREAS, on January 3, 2023, the City Council adopted Resolution 15,658which determined that there was a need to continue the local emergency due to continueddrought conditions and lack of adequate water supply; and WHEREAS, pursuant to Government Code section 8630(c), the City Councilmust review the need for continuing the local emergency at least once every 60 daysuntil the governing body terminates the local emergency; and WHEREAS, the City Council has determined that there is a need to continue thelocal emergency because the conditions that brought on the May 17, 2022 localemergency persist; and WHEREAS, the City Council ratified Director’s Order No. 22-04 on September20, 2022, and has determined the provisions of that order shall remain in effect and isattached as Exhibit A; and 11 Resolution No.Local Emergency Continuance Persuant to Government Code Section 8630(c)Page2 WHEREAS, pursuant to Government Code section 8634, and Chapter 6 of theCity Code, the Director may promulgate orders and regulations necessary to provide forthe protection of life and property and shall request the City Council to ratify such ordersand regulations.
NOW, THEREFORE, the City Council of the City of Oxnard resolves that thelocal emergency declared on May 17, 2022 due to drought conditions and lack ofadequate water supply shall remain in effect.
PASSED AND ADOPTED THIS 21st day of February 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
John C. Zaragoza, Mayor
ATTEST:
Rose Chaparro, City Clerk
APPROVED AS TO FORM:
Stephen M. Fischer, City Attorney
12 Resolution No.Local Emergency Continuance Persuant to Government Code Section 8630(c)Page3 EXHIBIT A(Director of Emergency Services Order 22-04) 13 DES Order No. 22-04
September 7, 2022
CITY OF OXNARD
DIRECTOR ORDER NO. 22-04
ORDER OF THE DIRECTOR OF EMERGENCY SERVICES OF THE CITY OF
OXNARD MODIFYING MANDATORY WATER CONSERVATION MEASURES
WHEREAS, Government Code section 8630 in conjunction with Chapter 6, section 3 subparagraph (C)(1) of the Oxnard City Code (“OCC”) empower the City Manager of the City of Oxnard (“City”), acting in the capacity of the Director of Emergency Services, to promulgate orders and regulations during the existence of a local emergency when drought conditions threaten the safety of persons or property within the City; and
WHEREAS, on May 17, 2022, the City Council adopted Resolution 15,568 proclaiming the existence of a local emergency due to drought conditions and lack of adequate water supply; and
WHEREAS, also on May 17, 2022, the City Council adopted Resolution 15,569 establishing new mandatory water conservation measures; and WHEREAS, on June 22, 2022, the City Manager acting as the Director of Emergency Services promulgated Director’s Order No. 22-03 updating the City’s water conservation measures adopted by the City Council in Resolution 15,569; and WHEREAS, Stage 2 water shortage conditions exist within the City; and WHEREAS, a new Director’s Order is required to comply with ongoing water conservation mandates from the State of California, the State Water Resources Control Board, the Metropolitan Water District of Southern California, and Calleguas Municipal Water District; and
WHEREAS, the Director of Emergency Services pursuant to OCC section 6-3(C)(1), herein shall issue updated water conservation measures, superseding DES Order No. 22-03, and amending in part the conservation measures set forth in Resolution 15,569; and WHEREAS, this Director’s Order includes the amended mandatory water conservation measures applicable to City water users in bold; and
WHEREAS, on May 24, 2022, the State Water Resources Control Board voted unanimously to implement a statewide ban on the use of potable water for irrigating non- functional turf at commercial, industrial and institutional properties, including Home Owners Associations (“HOAs”); and
WHEREAS, the State Water Resources Control Board has defined non-functional turf, which in general is considered to be turf that is solely ornamental and not regularly used for human recreational purposes or for civic or community events; and 14 DES Order No. 22-04
September 7, 2022
WHEREAS, Non-functional turf is a ground cover surface of mowed grass that is ornamental and not otherwise used for human recreation purposes. Non-functional turf does not include school fields, sports fields, and areas regularly used for civic or community events; and WHEREAS OCC Sec. 22-136(B)(3) establishes limits on watering duration as follows:
“Watering or irrigating of lawns, landscape or other vegetated area with potable water using a landscape irrigation system or a watering device that is not continuously attended is limited to no more than 15 minutes per day per station;” and
WHEREAS, the Metropolitan Water District of Southern California’s (“MWD”) Emergency Water Conservation Program Handbook, at Section 3.1.1., establishes eligible outdoor water restriction criteria as follows: “Metropolitan does not specify the day of the week or any method of even/odd house numbering for the watering restrictions. Metropolitan does, however, require that Member Agencies limit watering times to prevent substitution of water use from restricted days to permitted days. For this purpose, watering duration will be limited to no more than 10 minutes, effective July 1;” and
WHEREAS, the City’s watering duration limitations must be consistent with MWD’s limitations; and
WHEREAS, State Water Project suppliers, including MWD, have indicated their intent to penalize non-compliant purveyors (such as the City) with volumetric penalties of up to $2,000 per acre-foot that exceeds defined allocations established or do not comply with mandatory restriction criteria; and
WHEREAS, MWD’s Emergency Water Conservation Program Handbook, at Section
3.1.6., establishes exceptions to 1-day outdoor watering restrictions including: “locally- determined exceptions which reflect modest community choice will be considered.”; and WHEREAS, the State Water Resources Control Board has provided information that signals their intent to prioritize the irrigation of trees to ensure the health of trees and urges the continuation of watering of trees during the drought; and WHEREAS, Trees provide clean air, reduce urban heat islands, capture stormwater, improve water quality, reduce flood risk, stabilize soil, and provide habitat to wildlife. ///
///
///
///
///
NOW, THEREFORE, THE DIRECTOR OF EMERGENCY SERVICES OF THE CITY OF OXNARD DOES HEREBY ORDER AS FOLLOWS:
15 DES Order No. 22-04
September 7, 2022
SECTION 1. The recitals, facts, findings, and conclusions set forth above in the preamble of this Order are true and correct, and are incorporated by reference into this Order as though fully set forth herein.
SECTION 2. Resolution 15,569 is attached hereto and incorporated by reference as though fully set forth herein, as Exhibit A.
SECTION 3. This Director Order supersedes DES Order No. 22-03 issued on June 22, 2022.
SECTION 4. In accordance with Resolution 15,569 the following water conservation measures are in effect during the continued declaration of a local emergency due to drought conditions and lack of adequate water supply:
a. Watering of lawns, functional turf, trees, shrubs, vegetation, landscape and other outside irrigation is prohibited except between 4 p.m. and 9 a.m. or 6 p.m. and 9 a.m. during daylight savings time, no more than once per week.
b. The following watering schedule is established:
i. Odd numbered addresses (Ending in 1, 3, 5, 7, 9): Sundays ONLY. ii. Even numbered addresses (Ending in 0, 2, 4, 6, 8): Saturdays ONLY iii. No watering between 9 a.m. and 4 p.m. (non-daylight savings time) iv. No watering between 9 a.m. and 6 p.m. (daylight savings time)
c. Exceptions to allow for irrigation outside of the designated periods include (1) the hand watering of trees, food plants, or other perennials with use of a container (e.g. bucket or watering can) or a hose fitted with a shut-off nozzle and (2) the use of drip irrigation or other high-efficiency irrigation systems to apply water at a weekly volume consistent with the one-day watering restriction imposed on less efficient irrigation systems.
d. Irrigation of park and school ground areas with potable water are only permitted during the once weekly designated irrigation periods noted in this Section.
e. Sports activity fields may irrigate more frequently, but only as necessary, to maintain playing surface quality.
f. All vegetation within Wildland-Urban Interface and Defensible Space will be maintained as required under Public Resource Code 4291.
g. The application of potable water to landscapes during and within 48 hours after measurable rainfall is prohibited.
16 DES Order No. 22-04
September 7, 2022
h. The irrigation of newly constructed homes and building exteriors with potable water is prohibited unless drip or microspray systems are used.
i. The use of potable water in a fountain or other decorative water feature is prohibited, except where the water is part of recirculating system.
j. The City must provide prompt notice to customers when information indicates a leak may exist within the end-user’s control.
k. Irrigation of non-functional turf on medians with potable water is prohibited.
l. Potable water for irrigation of non-functional turf at commercial, industrial and institutional properties, including HOAs, is prohibited.
m. Watering or irrigating of functional turf, landscape or other vegetated area with potable water using a landscape irrigation system or a watering device is limited to no more than 10 minutes per day per station.
n. Trees in public spaces may be irrigated more frequently, but only as necessary, to maintain tree well-being for human health and safety as determined by the Emergency Services Director.
SECTION 5. The Oxnard Water Division shall take the following actions when water waste is reported or observed:
First Violation Warning Letter
7 Day Post Letter
Follow Up Phone
Call
For a first violation, the City shall give written notice of the violation to the customer by personal service,
by delivery through regular United States mail
addressed to the customer's residence, or any other
means reasonably designed to notify the customer of
the violation. The notice shall contain a description of violation, educational notice listing all prohibited
water waste, and provide resources such as rebate
information.
Follow up to see if the customer has received the
educational letter. Discuss if the issue has been
addressed and offer additional information/resources
Second Violation Notice to Correct For a second violation, the City shall give a written notice to correct the violation to the customer by
personal service, by delivery through regular United
States mail addressed to the customer's residence, or
any other means reasonably designed to notify the
customer of the violation. The notice to correct shall
contain a description of the violation, request to
correct the violation, a statement of the possible
17 DES Order No. 22-04
September 7, 2022
penalties for violation, and a statement informing the
customer of his/her right to request an adjustment or
an appeal.
Third Violation Citation & Fine For a third violation, the City shall issue an administrative citation and fine in the amount of $100
to the customer by personal service, by delivery
through regular United States mail addressed to the
customer's residence, or any other means reasonably
designed to notify the customer of the violation. The
citation shall contain a description of the violation,
fine amount and a statement informing the customer
of his/her right to request an adjustment or an appeal.
Fourth Violation Citation & Fine For a fourth violation, the City shall issue an administrative citation and fine in the amount of $500
to the customer by personal service, by delivery
through regular United States mail addressed to the
customer's residence, or any other means reasonably
designed to notify the customer of the violation. The
citation shall contain a description of the violation,
fine amount and a statement informing the customer
of his/her right to request an adjustment or an appeal.
Fifth / Additional
Violations
Citation & Fine For a fifth violation, the City shall issue an administrative citation and fine in the amount of
$1000 to the customer by personal service, by
delivery through regular United States mail addressed
to the customer's residence, or any other means
reasonably designed to notify the customer of the
violation. The citation shall contain a description of the violation, fine amount and a statement informing
the customer of his/her right to request an adjustment
or an appeal.
The City may impose such other penalty or fine as
deemed appropriate by the City Manager, and
consistent with Oxnard City Code, until such time
that the City Manager determines that further
violations are not likely to occur.
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68 CITY COUNCIL AGENDA REPORT
CITY COUNCIL/HOUSING AUTHORITY/SUCCESSOR
AGENCY/FINANCING AUTHORITY
BUSINESS/COMMITTEE REPORTS
AGENDA ITEM NO. G.1
DATE: February 21, 2023
TO: City Council
FROM: Shiri Klima, Deputy City Manager, (805) 385-7487, [email protected]
SUBJECT: Appointment of Members to Serve on the City's CAG's. (5 minutes)
RECOMMENDATION
That the Mayor, with the approval of the City Council, make the following appointments:
1. To Senior Services Commission: Clark Owens (D1);
2. To Community Relations Commission: Helaine Stallion (D1) and Tiffany Lopez (at large);
3. To Cultural Arts Commission: Teodoro Lopez (D1);
4. To Parks, Recreation and Community Services Commission: Miguel Fernandez (D1); and
5. To Planning Commission: Steven Nash (D1).
Please click the following link to view the required Measure M pre-recorded presentation video: https://youtu.be/86I- XAZEhEY
BACKGROUND
Oxnard City Code section 2-36 states that the Mayor, with the approval of the City Council, shall appoint the members of each Citizen Advisory Group (CAG). The process is outlined in that provision, including nomination by each Council member congruent with his or her term in office. Section 2-37 states that each commissioner shall undergo the City's formal background check procedures before appointment.
DISCUSSION
1. Senior Services Commission (SSC):
The SSC analyzes, defines and investigates issues and needs of the senior citizens in the City, develops and recommends solutions for problems affecting senior citizens to the City Council and other appropriate community organizations, and disseminates information and educational materials that will assist in enhancing the quality of life of the senior citizens and treatment of senior citizens. The SSC is composed of seven members, all of whom must reside in the City and have reached their 50th birthday. For this purpose, Councilmember Perello nominates Clark Owens to represent D1, who has passed the City’s formal background check procedures.
2. Community Relations Commission (CRC):
The CRC's powers and duties relate to analyzing, defining and investigating matters involving group prejudices, racial tension, intolerance or differences in treatment or favoritism of a person on a basis other than individual merit. The CRC promotes mutual understanding and respect--including through educational campaigns--among all residents to discourage or prevent the aforementioned negative practices. The CRC is composed of seven members, all of whom must reside in the City and be over the age of 18. For this purpose, Councilmember Perello nominates Helaine Stallion to represent D1, and Mayor Zaragoza nominates Tiffany Lopez to represent the City at large. Both candidates have passed the City’s formal background check procedures.
69 3. Cultural Arts Commission (CAC):
The CAC advises on all matters related to cultural arts, including public art, in the City. The CAC is composed of seven members, all of whom must reside in the City, be over the age of 18, and have a special knowledge or interest in the arts.
For this purpose, Councilmember Perello nominates Teodoro Lopez to represent D1, who has passed the City’s formal background check procedures.
4. Parks, Recreation and Community Services Commission (PRCSC):
The PRCSC is concerned with all matters pertaining to the parks, recreation and community services activities in the City. The PRCSC serves as a liaison between the City Council and the community on matters related to parks, recreation and community services activities in the City. The Commission is composed of seven members, all of whom must reside in the City and be over the age of 18. For this purpose, Councilmember Perello nominates Miguel Fernandez to represent D1. This individual has passed the City’s formal background check procedures.
5. Planning Commission:
The Planning Commission is charged with various functions and duties throughout the Oxnard City Code and the California Government Code, including preparing, reviewing and revising the City's General Plan; implementing that General Plan through various specific plans, zoning and subdivision ordinances; promoting the coordination of local plans and programs with the plans and programs of other public agencies; annually reviewing the City's capital improvement program for consistency with that General Plan; ensuring conformity with the General Plan for any real property acquired for public purposes or for any public building or structure constructed or authorized; and ensuring conformity with the General Plan for any real property disposed of or for any street vacated or abandoned. The Planning Commission is composed of seven members, all of whom must reside in the City and be over the age of 18. For this purpose, Councilmember Perello nominates Steven Nash to represent D1, who has passed the City’s formal background check procedures.
Staff will return on a rolling basis with additional Council nominations to fill the remaining vacancies in the City's CAGs, committees, and boards.
STRATEGIC PRIORITIES
This agenda item supports the Quality of Life strategy. The purpose of the Quality of Life strategy is to restore and increase quality services and programs that enrich Oxnard's diverse community, promotes safe neighborhoods, encourages community engagement, and supports our residents in their efforts to improve their quality of life.
FINANCIAL IMPACT
There is no financial impact.
COMMITTEE OUTCOME
This item did not originate in Committee.
Prepared by: Samantha Shapiro, Project Manager
ATTACHMENTS
1. 02.21.23 Appointment of Members to Serve on the City's CAGs (1)
70 Samantha Shapiro, Project Manager
Appointment of Members to Serve
on the City’s CAGs
City Council
February 21, 2023
71 RECOMMENDATION 2
That the Mayor, with the approval of the City Council, make the following appointments:
1. To Senior Services Commission: Clark Owens (D1);
2. To Community Relations Commission: Helaine Stallion (D1) and Tiffany Lopez (at large);
3. To Cultural Arts Commission: Teodoro Lopez (D1);
4. To Parks, Recreation and Community Services Commission: Miguel Fernandez (D1); and
5. To Planning Commission: Steven Nash (D1).
72 3
SENIOR SERVICES COMMISSION
Function Analyzes, defines and investigates issues and the needs of senior citizens in the City and advises the City Council on such matters; Develops and recommends solutions for problems affecting senior citizens to the City Council and other appropriate community organizations; and Disseminates
information and educational materials and reports that will assist in enhancing the quality of life of senior citizens and the treatment of senior citizens.
Requirements • 7 members
• Resident of the City
• Must have reached their 50th birthday
Nomination • Councilmember Perello nominates Clark Owens (D1) 73 4
COMMUNITY RELATIONS COMMISSION
Function • Analyzing, defining and investigating matters involving group prejudices, racial tension, intolerance or differences in treatment or favoritism of person on a basis other than individual merit
• Promoting mutual understanding and respect--including through educational campaigns--among all residents to
discourage or prevent the aforementioned negative practices Requirements 7 members must reside in City and be over age 18 Nomination • Councilmember Perello nominates Helaine Stallion (D1) • Mayor Zaragoza nominates Tiffany Lopez (at large)
74 5
CULTURAL ARTS COMMISSION
Function Advises on all matters related to cultural arts, including public art, in the City.
Requirements •7 members
•Resident of the City
•Must be at least 18 years of age
Nomination ● Councilmember Perello nominates Teodoro Lopez (D1) 75 6
PARKS, RECREATION AND COMMUNITY SERVICES
COMMISSION
Function Is concerned with all matters pertaining to the parks, recreation and community services activities in the City and serves as a liaison between the City Council and the community on such matters.
Requirements 7 members must reside in City and be over age 18 Nomination • Councilmember Perello nominates Miguel Fernandez (D1) 76 7
PLANNING COMMISSION
Function • Preparing, reviewing and revising General Plan • Implementing General Plan through various specific plans, zoning and subdivision ordinances
• Promoting coordination of local plans and programs with the plans and programs of other public agencies
• Annually reviewing City's capital improvement program for consistency with General Plan
• Ensuring General Plan conformity for real property
acquired/disposed of, public building/structure constructed, or street vacated/abandoned
Requirements 7 members must reside in City and be over age 18 Nomination • Councilmember Perello nominates Steven Nash (D1) 77 THE END
8 78
CITY COUNCIL AGENDA REPORT
INFORMATION/CONSENT AGENDA
AGENDA ITEM NO. J.1
DATE: February 21, 2023
TO: City Council
FROM: Rose Chaparro, City Clerk, (805) 385-7805, [email protected]
SUBJECT: Approval of Minutes.
RECOMMENDATION
That the City Council approve the minutes of the January 17, 2023 regular meeting as presented.
BACKGROUND
Approval of Minutes.
STRATEGIC PRIORITIES
This agenda item is a routine operational item or does not relate to the five strategic priorities adopted by City Council on March 16, 2021.
FINANCIAL IMPACT
There is no financial impact.
COMMITTEE OUTCOME
This item did not originate in Committee.
Prepared by: Rose Chaparro, City Clerk
ATTACHMENTS
1. MINUTES 01 17 2023 CC Regular Meeting
79 MINUTES
OXNARD CITY COUNCIL
Regular Meeting
January 17, 2023
A. ROLL CALL, POSTING OF AGENDA
At 4:3 3 p.m., Mayor John C. Zaragoza called to order the regular meeting of the Oxnard City Council, (concurrently with the Community Development Commission Successor Agency), in the City Hall Council Chambers at 305 W. Third Street, Oxnard, California. The City Clerk called the roll and announced the posting of the agenda. Councilmembers Bert E. Perello, Gabriel (Gabe) Teran, Mayor Pro Tem Bryan A. MacDonald, and Mayor John C. Zaragoza were present.
Councilmember Gabriela Basua joined the meeting at 4:54 p.m.
Councilmember Oscar Madrigal joined the meeting at 6:39 p.m.
Staff members present in person were Alexander Nguyen, City Manager; Ashley Golden, Assista nt City Manager; Stephen M. Fischer, City Attorney; Ken Rozell, Chief Assistant City Attorney; Michelle (Elle) McCarron, Assistant City Attorney; Jason Benites, Police Chief; Alexander Hamilton, Fire Chief; Michael Wolfe, Public Works Director; Brian Yanez , Assistant Public Works Director; Steve Howlett, Assistant Public Works Director; Joseph Marcinko, Assistant Public Works Director; Joe Pearson II, AICP, Planning & Sustainability Manager; Tai P. Chau, PE, QSD/P, Supervising Civil Engineer ; Betsy George, Chief Financial Officer; Steve Naveau, Human Resources Director; Emilio Ramirez, Housing Director; Elsa Brown, Affordable Housing Manager; Terrel Harrison, Cultural & Community Services Director; Adam Smith, Project Manager; Samantha Shapiro, Project Manager; Dee Lai, Assistant City Clerk and Rose Chaparro, City Clerk.
Staff member Shiri Klima, Deputy City Manager ; Eden Alomeri, Revenue & Licensing Director & Assistant City Treasurer ; and Kathleen Mallory, Planning & Sustainability Manager participated via videoconference.
Rachel Om, AICP, with Fehr & Peers; Randy Westhaus with Tetra Tech; and Jeff Hoskinson with Atkinson, Andelson, Loya, Ruud & Romo also participated via videoconference.
THE FOLLOWING LEGISLATIVE BODIES ARE MEETING: City Council and Community Development Commission Successor Agency.
B. PUBLIC COMMENTS ON CLOSED SESSION ITEMS (None received.)
C. CLOSED SESSION (4:30 PM)
80 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 2
1. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION (Government Code section 54956.9(d)(4))
Based on existing facts and circumstances, the City Council shall decide whether to initiate litigation in one potential case. Legislative Body: City Council
At 4:33 p.m., the City Council recessed to a closed session. At 5:02 p.m., the City Counc il reconvened in open session in the Council Chambers. The City Council by a vote of 4 to 0, with Councilmember Madrigal and Councilwoman Basua absent has directed the City Attorney to initiate an action. The action, the defendants, and the other particulars shall, once unsealed, be disclosed to any person upon inquiry, unless to do so would jeopardize the City’s ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.
D. OPENING CEREMONIES (5:00 PM)
The flag salute was followed by a moment of silence.
E. PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA
Public comments were received from Maria Ventura (Gas Company increased rates).
F. REPORT OF CITY MANAGER/EXECUTIVE DIRECTOR/SECRETARY
City Manager Nguyen reminded the community about the series of meeting s being conducted to inform residents about the cost of water and future water rates . The next community meeting is scheduled for Monday, January 23, 2023, starting at 6:00 – 8:00 p.m., at the River Ridge Clubhouse . City Manager Nguyen made an additional announcement concerning the rate increases for natural gas (additional $250,000 increase in costs), compressed natural gas rates (costs tripled) , and diesel fuel . ($300,000 increase in costs).
1. City Manager Department
SUBJECT: COVID-19 Update from Director of Emergency Services.
RECOMMENDATION: That the City Council re-authorize remote teleconference meetings of the legislative bodies of the City of Oxnard in accordance with Assembly Bill 361 based on the following findings: (i) the current COVID-19 situation, particularly with its variants, is causing, and will continue to cause, imminent risks to the health and safety of persons within the City, including City Council members, City staff, appointed officials, and members of the public; (ii) state and local officials continue to impose or recommend measures to promote social distancing; and (iii) the Governor's COVID-19 State of Emergency is still in effect; and (iv) numerous public agencies throughout Ventura County are still operating in accordance with Assembly 361, for the reasons stated herein.
It was moved by Mayor Pro Tem MacDonald , seconded by Councilmember Perello, to approve the recommended action as presented. VOTE: Basua, MacDonald, Perello, Teran, 81 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 3
and Zaragoza voted in favor; motion passed 5-0. Councilmember Madrigal was absent.
G. CITY COUNCIL/HOUSING AUTHORITY/SUCCESSOR AGENCY/FINANCING
AUTHORITY BUSINESS/COMMITTEE REPORTS
1. City Manager Department
SUBJECT: Appointment of Members to Serve on the City's CAGs.
RECOMMENDATION: That the Mayor, with the approval of the City Council, make the following appointments:
1. To Senior Services Commission: Alice Sweetland (D2);
2. To Community Relations Commission: Cynthia Gonzalez (D2);
3. To Parks, Recreation and Community Services Commission: Chris Hernandez (D2);
4. To Commission on Homelessness: Rene Camper-Stewart (D2); and
5. To Planning Commission: Vincent Stewart (D2).
It was moved by Councilmember Teran, seconded by Councilmember Basua, to approve the recommended action as presented. VOTE: Basua, MacDonald, Perello, Teran, and Zaragoza voted in favor; motion passed 5-0. Councilmember Madrigal was absent during this vote.
H. REVIEW OF INFORMATION/CONSENT AGENDA
Items J-1 through J.10 were discussed among the Council and staff.
I. PUBLIC COMMENTS ON INFORMATION/CONSENT AGENDA
Public comments were received from Tevin Schmitt (J.8) and Luis Montalvo (J.8).
J. INFORMATION/CONSENT AGENDA
1. City Clerk Department
SUBJECT: Approval of Minutes.
RECOMMENDATION: That the City Council approve the minutes of the December 20, 2022 regular meeting as presented.
2. Public Works Department
SUBJECT: Purchase Order #7991 Change Order with Velocity Truck Centers.
RECOMMENDATION: That the City Council approve and authorize the Purchasing Agent to execute a Purchase Order Change Order with Velocity Truck Centers for an additional $116,278.00 for a new not-to-exceed amount of $8,476,576.80 for the purchase of refuse trucks for the Environmental Resources Division.
82 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 4
(This item is not subject to the California Environmental Quality Act.)
(The original Purchase Order with Velocity Truck Centers was approved by Council on March 2, 2021.)
3. Public Works Department
SUBJECT: Agreement 32300160 with Venco Electric Inc. for Advanced Water Purification Facility Finished Water Pump Variable Frequency Drive Electrical Rehabilitation Project, Specification No. PW 23-04.
RECOMMENDATION: That the City Council approve and authorize the following for a total of $262,560.00 in Project funds for the Advanced Water Purification Facility Finished Water Pump Variable Frequency Drive Electrical Rehabilitation Project (No. 226504/C2023):
1. The execution of an Agreement with Venco Electric Inc. in the amount of $218,800.00 for the Project;
2. A Project contingency amount of $21,880.00 for the Project; and
3. A Project allocation amount of $21,880.00 for engineering, inspection, and project management for the Project.
(This item is categorically exempt from the California Environmental Quality Act pursuant to Title 14 of the California Code of Regulations section 15301(b)).
(This item did not originate in Committee.)
4. Public Works Department
SUBJECT: Construction Agreement 32300166 with Commercial Waterproofing Systems Inc., dba ERC Roofing and Waterproofing for South Oxnard Center Roof Replacement Project, Specification No. PW 23-32.
RECOMMENDATION: That the City Council approve and authorize the following for a total of $779,952 in Project funds for the South Oxnard Center Roof Replacement Project (Project No. 205502/C2010):
1. Execute Agreement 32300166 with Commercial Waterproofing Systems Inc., dba ERC Roofing and Waterproofing in the amount of $649,960 for the Project;
2. A Project contingency amount of $64,996 with Commercial Waterproofing Systems Inc., dba ERC Roofing and Waterproofing for a total not to exceed value of $714,956 for the Project; and
3. A Project allocation amount of $64,996 for engineering, inspection, survey and project management for the Project.
(This item is categorically exempt from the California Environmental Quality Act pursuant to Title 14 of the California Code of Regulations Section 15301(d).)
(This item did not originate in Committee as this is a capital improvement project 83 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 5
specifically listed in the City's Capital Improvement Program budget, which was previously approved by the City Council.)
5. Public Works Department
SUBJECT: Agreement 32300156 with CCS Los Angeles Janitorial, Inc. for Custodial Services at Oxnard Transportation Center.
RECOMMENDATION: That the City Council approve and authorize an Agreement with CCS Los Angeles Janitorial, Inc. for a term of one year with the option to extend for two consecutive periods of one year each upon the written agreement of both parties for a maximum possible contract term of three (3) years, and for a total contract not-to-exceed amount over the entire possible contract term of $600,000 to provide custodial services for the Oxnard Transportation Center.
(This item is not considered a project under the California Environmental Quality Act).
(This item did not originate in Committee.)
6. City Manager Department
SUBJECT: Eighth Annual Recognized Obligation Payment Schedule 2023-24.
RECOMMENDATION: That the Community Development Commission Successor Agency adopt CDCSA Resolution No. 43 approving the Eighth Annual Recognized Obligation Payment Schedule (ROPS) 23-24 covering the period of July 1, 2023 - June 30, 2024.
7. Police Department
SUBJECT: Resolution No. 15,661 Commending Regina Martin for Thirty-Two Years of Service to the City of Oxnard.
RECOMMENDATION: That the City Council adopt Resolution No. 15,661 commending Regina Martin for Thirty-Two Years of Service to the City of Oxnard.
(This item did not originate in Committee.)
8. Community Development Department
SUBJECT: Adoption of Ordinance No. 3022 - Regulating the Use and Distribution of Expanded Polystyrene Foodware and Products in the City of Oxnard.
RECOMMENDATION: That the City Council adopt Ordinance No. 3022 titled “Ordinance of the City of Oxnard, California adding Article XXV to Chapter 7 of the Oxnard City Code prohibiting the use, manufacturing, distribution, and sale of designated polystyrene products” and find that the ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to section 15061(b)(3) of the CEQA Guidelines.
84 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 6
9. Public Works Department
SUBJECT: Public Project Agreement 32300205 with Pacific Builders and Roofing, Inc. dba WSP Roofing for Sturgis Annex Roof Replacement Project, Specification No. PW 23-31.
RECOMMENDATION: That the City Council approve and authorize the following for a total of $1,277,685.36 in Project funds for the Sturgis Annex Roof Replacement Project, Specification No. PW 23-31 (Project No. MO2111 / C2039):
1. The execution of Agreement 32300205 with Pacific Builders and Roofing, Inc. dba WSP Roofing in the amount of $1,064,737.80 for the Project;
2. Authorize a Project contingency amount of $106,473.78 with Pacific Builders and Roofing, Inc. dba WSP Roofing for a total not to exceed value of $1,171,211.58 for the Project; and
3. A Project allocation amount of $106,473.78 for engineering, inspection, survey and project management for the Project; and
4. Authorize the Finance Director or designee to approve a budget appropriation for the use of this Project in the total amount of $278,686 from the available fund balance in the Measure O Sales Tax Fund (104).
(This item is categorically exempt from the California Environmental Quality Act pursuant to Title 14 of the California Code of Regulations Section 15301(c).)
(This item did not originate in Committee as this is a capital improvement project specifically listed in the City's Capital Improvement Program budget, which was previously approved by the City Council.)
10. Fire Department
SUBJECT: Professional Services Agreement No. 32300227 with On Duty Health, PLLC for Fire Department Annual Wellness Exams.
RECOMMENDATION: 1. That the City Council authorize approval of Agreement No. 32300227 with On Duty Health, PLLC to provide annual wellness exams for the Fire Department in the amount of $98,280 per year for three years for a total not to exceed amount of $294,840.
2. That the City Council find that the approval of the agreement is not subject to the California Environmental Quality Act pursuant to California Code of Regulations, Title 14, Chapter 3, section 15060(c)(2).
It was moved by Mayor Pro Tem MacDonald , seconded by Council member Perello, to approve the Information/Consent items as presented. VOTE: Basua, MacD onald, Perello, Teran, and Zaragoza voted in favor; motion passed 5-0. Councilmember Madrigal was absent during this vote.
K. REPORTS
85 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 7
1. Public Works Department
SUBJECT: Caltrans Required Local Roadway Safety Plan.
RECOMMENDATION: That the City Council:
1. Receive a presentation and comment on the Local Roadway Safety Plan and
2. Adopt the Caltrans Required Local Roadway Safety Plan as final.
(This item is not considered a project under the California Environmental Quality Act.)
(Public Works and Transportation Committee approved 2-0.)
Michael Wolfe, Public Works Director introduced Rachel Om, AICP, with Fehr & Peers who presented and an swered questions . P ublic comments were received from Lawrence Stein .
Discussion ensued among the Council and staff.
It was moved by Councilmember Teran, seconded by Mayor Pro Tem MacDonald, to approve the recommended action as presented. VOTE: Basua, M acDonald, Perello, Teran, and Zaragoza voted in favor; motion passed 5-0.
Councilmember Madrigal was absent during this
vote.
2. Human Resources Department
SUBJECT: Resolution No. 15,662 Approving Increase to the Fire Department's Total Allocated Positions.
RECOMMENDATION: That the City Council Approve and Adopt Resolution No. 15,662 to Amend Resolution No. 15,593 Authorizing Full-Time Equivalent Positions Pursuant to Chapter 4 of the City Personnel Rules and Regulations.
Steve Na veau, Human Resources Director and Alexander Hamilton, Fire Chief presented and answered questions. Public comments were received from Lawrence Stein.
It was moved by Mayor Pro Tem MacDonald, seconded by Councilmember Perello, to approve the recommended action as presented. VOTE: Basua, MacDonald, Perello, Teran, and Zaragoza voted in favor ; motion passed 5- 0.
Councilmember Madrigal was absent
during this vote.
3. Housing Department
SUBJECT: Downtown Oxnard Improvement Association Annual Update.
RECOMMENDATION: That the City Council receive and file the 2021-22 Fiscal Year Annual Update and presentation on the Downtown Oxnard Improvement Association.
(This item did not originate in Committee.)
86 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 8
Emilio Ramirez, Housing Director and Steve Huber, President of the Downtown Oxnard Improvement Association presented and answered questions . No public comments were received. The report was received and filed, no formal action was required.
4. Community Development Department
SUBJECT: Planning and Zoning Permit No. 22 -600-02 (Pre -Application); Pre - Application Review of the Rio Del Valle Campus Expansion Master Plan, Located at 3100 North Rose Avenue (APN: 144-0-110-445; -220; - 055; & -590). Project Name: Rio Del Valle Campus Expansion Master Plan.
RECOMMENDATION: That the City Council review and provide preliminary comments on a pre-application for a master plan to expand the Rio Del Valle school campus, including the required annexation, general plan amendment, pre-zoning, greenbelt amendment, expanded school uses, and bus storage and maintenance facility.
Joe Pearson II, AICP, Planning & Sustainability Manager ; Tanner Shelton, AICP, Senior Planner and Consultants Randy Westhaus with Tetra Tech and Jeff Hoskinson with Atkinson, Andelson, Loya, Ruud & Romo presented and answered questions .
Public comments were received from the applicant, Dr. John Puglisi, Superintendent for the Rio School District and Eleanor Torres, Vice President of Programs and Board President for the Rio School District. W ritten comments were rec eived and provided to Council. The report was received and filed, no formal action was required.
5. City Manager Department
SUBJECT: Determination of Future Uses of Sports Park & College Park.
RECOMMENDATION: 1. That the City Council, based on the Parks and Recreation Master Plan and outcomes of Sports Park Idea Day, designate the future use at Sports Park to be a baseball/softball complex and designate the future use at College Park to be a soccer complex.
2. That the City Council find that its action is not subject to the California Environmental Quality Act pursuant to California Code of Regulations, Title 14, Chapter 3, section 15060(c)(2).
(Community Services, Public Safety, Housing and Development Committee voted 2-1 to move this item forward for Council discussion without a recommendation.) Alexander Nguyen, City Manager presented and answered questions.
Public comments were received from M argo Byrne, M ichael Gleason, Carla Andres, Jenny Cardenas, Leyna Jones, Tito Rojas, La wrence Stein, Luciano Ortiz, Bella Webb, Justin Tapia, Chris Crotty, Wendi Cool, Larry Bruyere, Greg Kunyda, Sopia Drake, Juan Aregon, Chris Hernandez, Angela Whitecomb, Miguel Fernandez, and Francisco Cardena. Written 87 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 9
comments were received and provided to Council.
It was moved by Councilmember Basua, seconded by Mayor Zaragoza, to approve the recommended action as presented. VOTE: Basua, Madrigal, Teran, and Zaragoza voted in favor; MacDonald and Perello voted against; motion passed 4-0.
At 9:52 p.m., City Council voted to continue the meeting past 10:00 p.m., and take action on the remainder of the items on the agenda.
It was moved by Councilmember Perello , seconded by Councilmember Basua, to approve the recommended action as presented. VOTE: Basua, MacD onald, Madrigal, Perello, Teran, and Zaragoza voted in favor; motion passed 6-0.
6. Finance Department
SUBJECT: Discuss General Fund Bonding/Debt Capacity and Long Range Planning Considerations. (20 minutes)
RECOMMENDATION: That the City Council receive and file a report from the Finance Department regarding General Fund bonding capacity and long-range planning considerations
(This item did not originate in Committee)
Betsy George, Chief Financial Officer presented and answered questions. Public comments were received from Lawrence Stein. The report was received and filed, no formal action was required.
7. City Manager Department
SUBJECT: Revision of the Approved Conceptual Design for South Oxnard Aquatics Center and Professional Services Agreement Amendment with the design architect, ELS Architecture + Urban Design. (40 minutes)
RECOMMENDATION: That the City Council:
1. Approve a revision to the approved conceptual design for the South Oxnard Aquatics Center (SOAC) Improvement Project (Project No. 225502) to include a 30-meter pool;
2. Approve an amendment to the professional services agreement with ELS Architecture + Urban Design in an amount of $75,000 for a total not to exceed amount of $3,975,057 and extend the contract terms to July 24, 2026; and
3. Find this project is currently undergoing California Environmental Quality Act Mitigated Negative Declaration (CEQA - MND) study pursuant to Title 14 of the California Code of Regulations Sections 15070 through 15075. The CEQA - MND will be completed and ready for final review and approval by the City Council at the time of construction award.
(This item did not originate in Committee as this is a capital improvement project 88 JANUARY 17, 2023 OXNARD CITY COUNCIL PAGE 10
specifically listed in the Capital Improvement Program budget, which was previously approved by the City Council.)
Ashley Golden, Assistant City Manager and Michael Wolfe, Public Works Director presented and answered questions . Public comments were received from Angela Whitecomb, David Vandenberg, and Miguel Fernandez. Discussion ensued among the Council and staff.
It was moved by Mayor Zaragoza, seconded by Councilmember Perello, to approve the recommended action as presented. VOTE: Basua, MacD onald, Madrigal, Perello, Teran,
and Zaragoza voted in favor; motion passed 6-0.
L. ADJOURNMENT
There being no further business on the agenda, and without objection, Mayor Zaragoza adjourned the meeting at 11:22 p.m.
ROSE CHAPARRO JOHN C. ZARAGOZA
City Clerk Mayor
89 CITY COUNCIL AGENDA REPORT
INFORMATION/CONSENT AGENDA
AGENDA ITEM NO. J.2
DATE: February 21, 2023
TO: City Council
FROM: Alexander Nguyen, City Manager, (805) 385-7430, [email protected]
SUBJECT: List of City Manager Approved Contracts - Informational Only.
RECOMMENDATION
That the City Council receive and file the list of City Manager approved contracts for the period June 1, 2022 through December 31, 2022.
BACKGROUND
On June 12, 2018, the City Council approved Ordinance No. 2943 changing the City's Purchasing Procedures. Ordinance No. 2943 increased the threshold for City agreements/contracts, change orders/amendments and purchase orders allowing the City Manager to award and execute any procurement contract or purchase order up to $200,000 annually. Additionally, the City Manager may execute any amendment that, collectively with the original purchase order or contract and all amendments thereto, does not exceed $200,000 annually. The attached list of contracts, purchase orders and amendments meet the criteria of amounts of being between $101,000 to $200,000 annually (including all prior amendments) for the period between June 1, 2022 through December 31, 2022.
STRATEGIC PRIORITIES
This agenda item supports the Organizational Effectiveness strategy. The purpose of the Organizational Effectiveness strategy is to reinforce, stabilize, improve, and strengthen the organizational foundation of the City in order to build a modern, high-functioning City government that effectively and efficiently supports the operating departments in providing high-quality services and programs for our residents and businesses.
FINANCIAL IMPACT
There is no financial impact.
COMMITTEE OUTCOME
This item did not originate in Committee.
Prepared by: Luly Lopez, Executive Assistant I
ATTACHMENTS
1. City Manager Contract List
90 91
92 CITY COUNCIL AGENDA REPORT
INFORMATION/CONSENT AGENDA
AGENDA ITEM NO. J.3
DATE: February 21, 2023
TO: City Council
FROM: Michael Wolfe, Public Works Director, (805) 385-8055, [email protected]
SUBJECT: Agreement 32300182 with MERITO Foundation, Agreement 32300196 with Reality Improv Connection, Inc. and Agreement 32300195 with KTU&A, Inc. for the Oxnard Beautification and Clean- up Program, Project C2317.
RECOMMENDATION
That the City Council approve and authorize the following for a total of $734,832 in Project funds for the Oxnard Beautification and Clean-up Program:
1. A Professional Services Agreement with the MERITO Foundation in the amount of $219,001 for a term through June 30, 2024 for the Project;
2. A Professional Services Agreement with Reality Improv Connection, Inc. in the amount of $245,948 for a term through June 30, 2024 for the Project; and
3. A Professional Services Agreement with KTU&A, Inc. in the amount of $269,883 for a term through June 30, 2024 for the Project.
(Recommendation 1 is categorically exempt from the California Environmental Quality Act pursuant to Title 14 of the California Code of Regulations Section 15304(b); and Recommendations 2 and 3 are not projects subject to CEQA.)
(This item did not originate in Committee as this is a grant-funded project.)
BACKGROUND
The Clean California Local Grant Program (Program) is a competitive statewide program created to beautify and clean up local streets and roads, tribal lands, parks, pathways, transit centers, and other public spaces. The Program is one part of the nearly $1.1 billion Clean California initiative that takes direct aim at the continuous trash generation that has overwhelmed California Department of Transportation (Caltrans) and its partners.
On January 4, 2022, City Council approved the grant application for an amount not to exceed $5,000,000. The City applied for and received a grant award for $3,549,129 in July of 2022 to beautify portions of Beck Park, Del Sol Park, Lemonwood Park, Southwinds Park, and beautify and expand the Camino del Sol Community Garden.
The project will remove an estimated 163,428 square feet of unused turf from the corners of the four parks. The turf areas will be replaced with drought tolerant, native, and habitat providing landscaping to beautify the areas.
The project will expand the community garden on the south side of the existing garden, where there currently exists a narrow sidewalk path and a large dirt area. This area frequently accumulates litter, illegal dumping, and encampments.
The project will install new fencing around the garden, which will fence off the existing litter-prone area, and install new garden plots there for residents to use, along with new uniform internal fencing between garden plots. The community garden has been in high demand, with a waitlist steadily exceeding 30 residents and a waiting period of over one year for the last few years.
93 The project also involves the installation of trash receptacles in City parks, a city-wide litter abatement and illegal dumping prevention media campaign, and the coordination of park cleanup events.
The project was planned considering current and multiple needs in the City, as well as maximizing application scoring by considering the multi-objective criteria set forth by the grantor. Additionally, projects were chosen that fall in the State’s designated disadvantaged community areas, as they are eligible to receive 100% funding, without the need for local match. The park beautification elements were goals set forth in the 2021 Parks and Recreation Master Plan (Recommendation #13, Page 11: “Transform turf to native or conservation plantings in appropriate areas”; and discussion on “Adding community gardens” on page 162). See https://www.oxnard.org/city-department/public-works/oxnard-parks- and-recreation-master-plan/.
DISCUSSION
Staff issued Requests for Proposals (RFP) for the projects and selected the firms to complete the work. Proposals were scored by using the following criteria: the qualifications and experience of the firm/organization, the firm/organization’s approach, the firm/organization’s proposed scope of services and schedule of work, and an evaluation of the proposed cost. Staff from the Cultural and Community Services Department and the Public Works Department participated in the evaluations, including the Assistant Cultural and Community Services Director, the Parks Manager, the Assistant Public Works Director, and the Grants Coordinator.
This grant-funded project has a tight timeline, with the grant period concluding June 30, 2024, and with no extensions possible.
Landscape Architecture RFP
The RFP was published on August 1, 2022, and all proposals were due September 8, 2022. No proposals were received, so the RFP was re-released on September 19, 2022, and all proposals were due October 14, 2022. A total of two proposals were received and scored by staff. KTU&A, Inc. was selected as the highest scoring firm and references were checked.
The agreement with KTU&A, Inc. is for $269,883. The scope of the agreement involves the landscape design and park beautification elements described above.
Youth Education RFP
The RFP was published on August 1, 2022, and all proposals were due September 8, 2022. A total of two proposals were received and scored by staff. The MERITO Foundation was selected as the highest scoring firm, and references were checked. The agreement with MERITO Foundation is for $219,001. The scope of the agreement includes education and outreach for local educators focused on litter and illegal dumping prevention, youth education, and youth volunteer coordination. The youth education campaign will involve schools that are located within ¼ mile of the 12 park project sites. These schools include: RJ Frank Academy of Marine Science and Engineering (Camino del Sol Community Garden), Kamala Elementary (Beck Park), Lemonwood Elementary (Lemonwood Park), Cesar Chavez Elementary (Del Sol Park), Rose Avenue Elementary (Thompson Park), Art Haycox Elementary (Southwinds Park), Driffill Elementary (Community Center East Park), Dr. Manuel M. Lopez Academy of Arts and Sciences (Community Center East Park and Durley Park), Elm St. Elementary (Lathrop Park), Marina West Elementary (Marina West Park), McKinna Elementary (Durley Park), and Rose Avenue Elementary (Kohala Park).
Volunteer Coordination RFP
The RFP was published on August 1, 2022, and all proposals were due September 8, 2022. No proposals were received, so the RFP was re-released on September 19, 2022, and all proposals were due October 14, 2022. One proposal was received and the proposal was reviewed by staff. References were checked, and Reality Improv Connection, Inc. was selected as the firm to perform the service. The agreement with Reality Improv Connection, Inc. is for $245,948. The scope of the agreement includes coordinating and leading community engagement and volunteerism focused on the cleanup of seven City parks (Colonia Park, Thompson Park, Community Center East Park, Lathrop Park, Marina West Park, Durley Park, and Kohala Park), and the four park beautification sites (Beck Park, Del Sol Park, Lemonwood Park, Southwinds Park, and the Camino del Sol Community Garden.) The sites were selected based on their disadvantaged 94 status per grant guidelines.
Following these determinations for all three RFPs, procurement staff reviewed all documentation received from all three providers. Based upon the available information and research performed to date, staff believes that all consultants are capable of satisfactorily completing the project.
STRATEGIC PRIORITIES
This agenda item supports the Infrastructure and Natural Resources strategy. The purpose of the Infrastructure and Natural Resources strategy is to preserve and improve our roads, utilities, parks, trees, water supply and natural resources through effective planning, prioritization, and an equitable and efficient use of available funding.
FINANCIAL IMPACT
The total cost for all three agreements shall not exceed $734,832 for this phase of the Project. The Caltrans Clean California grant award for an amount not to exceed $3,549,129 is funding these agreements 100%. There is no City match requirement and no impact to the General Fund.
For Finance Use Only: State & Local Grants Fund (Orgs. 2101001/to CIP 3013301), Project C2317 - CLEAN CA-
OXNARD BEAUTIFICATION
COMMITTEE OUTCOME
This item did not originate in Committee.
Prepared by: Eric Humel, Grants Specialist
ATTACHMENTS
1. Agreement 32300196 - RICI
2. Agreement 32300182 - MERITO
3. Agreement 32300195 - KTU&A
95 C
ONSULTANT/PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF OXNARD AND REALITY IMPROV CONNECTION, INC.
B
y This Consultant/Professional Services Agreement (“Agreement”), the CITY of Oxnard (“CITY”) agrees to engage the services of Reality Improv Connection, Inc. (“CONSULTANT”), and CONSULTANT agrees to perform the services for CITY as herein described, for the compensation, during the term, and otherwise subject to the covenants and conditions herein set forth. CITY and CONSULTANT may be individually referred to as “Party” or collectively as the “Parties.” RECITALS:
WHEREAS, this Agreement is entered into as a result of the Restricted Grant Agreement (“RGA”) entered into between CITY and the California Department of Transportation (“CALTRANS”), attached hereto as Exhibit D and incorporated herein by this reference, for OXNARD BEAUTIFICATION PROJECT VOLUNTEER COORDINATOR, Agreement No. 32300196 (the “Project); and WHEREAS, per item 26c in the RGA, CONSULTANT shall adhere to any and all sections, items, attachment(s), and amendment(s) of the RGA in addition to the terms of this Agreement; and
WHEREAS, in the event of any conflict between the terms of this Agreement or any other incorporated document or attachment, and the RGA, the terms of the RGA shall control; and
WHEREAS, CONSULTANT represents that it is fully qualified t o perform the consulting and/or professional services required for performance under this Agreement by virtue of its experience and the training, education and expertise of its principals and its employees; and
WHEREAS, in light of the facts set forth above, the CITY desires to retain the services of a qualified Consultant to provide, on an independent contractor basis, for OXNARD BEAUTIFICATION PROJECT VOLUNTEER COORDINATOR and
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS,
CONDITIONS, AND PROMISES CONTAINED HEREIN AND FOR SUCH OTHER
GOOD AND VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated Agreement No. 32300196
96 i
nto this Agreement by this reference, as though set forth fully herein.
Section 2. SCOPE OF SERVICES
1. S
UMMARY DESCRIPTION OF SERVICES. [OXNARD BEAUTIFICATION PROJECT VOLUNTEER COORDINATOR]
2. P
ARTIES.
C
ITY of Oxnard (“CITY”), a general law and municipal corporation of the State of California, located at 300 West Third Street, Oxnard California 93030 R
eality Improv Connection, Inc. (“CONSULTANT”), a corporation of the State of California, located at 1300 Eastman Avenue, Ventura, California 93003
3. TERM OF AGREEMENT: From: Febr uary 22, 2023 To: June 30, 2024. 3 .1 Time is of the essence in this Agreement.
3.2 All services required of CONSULTANT under this Agreement shall be completed on or before the end of the term of the Agreement.
4. A
GREEMENT AMOUNT: $245,948
5. A
GREEMENT EXHIBITS.
T
he following documents memorialized below are the only exhibits to this agreement and are incorporated by reference as though fully set forth herein. In the event of a conflict between the Exhibits and this Agreement, the Agreement controls.
E
xhibit A: Statement of Work ( or “Scope of Services”)
Exhibit B: Schedule of Compensation
Exhibit C: Insurance Requirements
Exhibit D: Restricted Grant Agreement
Exhibit E: Federal & State Funding - Caltrans Projects
Exhibit F: Living Wage Policy
Exhibit G: Prevailing Wage Policy
6. D
ESIGNATED REPRESENTATIVES.
T
he Designated Representatives listed below shall be authorized to act on behalf of the named Party, be responsible for negotiations and contractual matters, and coordinate with each other to perform the services under this Agreement. Additionally, CONSULTANT’s services shall be performed or immediately supervised by the CONSULTANT’s Representative:
Agreement No. 32300196
97 CITY Designated Representative: CONSULTANT Designated Representative:
Name: Kevin Thompson Name: Katherine Kasmir
Title: Parks Manager Title: Executive Director Phone: 508-385-7951 Phone: 805-338-8646 Email: [email protected] Email: [email protected] Mailing Address (if differs from above): Mailing Address (if differs from above):
1060 Pacific Ave. Building 3
Oxnard, California 93030
7. CONTRACTUAL PREREQUISITES.
7.1 This Agreement must first be executed by the CONSULTANT , after which the Agreement shall be approved as to form by the CITY Attorney, then executed by the Mayor, or an authorized person on behalf of the CITY, and if executed by the Mayor shall also be executed by the CITY Clerk.
7.2 CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on CITY until the AGREEMENT is fully executed and approved by CITY.
7.3 A request for modification of the terms, prior to execution of the Agreement, must be made in writing and presented to the Designated Representative of the CITY prior to the time this Agreement is executed.
7.4 All proof of business license, insurance, and W -9 forms is required prior to execution of this Agreement.
7.5 CONSULTANT shall not perform any work under this Agreement until a proof of insurance has been provided to the City as required under Section 24 of this Agreement.
8. CONSULTANT'S SERVICES.
8.1 CONSULTANT shall perform the tasks, obligations, and services set forth in the “Scope of Services,” attached to and incorporated into this Agreement as “Exhibit A.” Once this Agreement is executed, the Scope of Services may only be modified by written Amendment pursuant to Section 12 of this Agreement.
8.2 The Services shall be coordinated with the designated City Project Manager set forth in Exhibit A subject to the direction of the City Manager or Department Director. CONSULTANT hereby designates its Project Manager as set forth in “Exhibit A” as the person responsible for the Services who shall coordinate with City’s Project Manager in executing the scope of services under this Agreement.
Agreement No. 32300196
98 9. COMPENSATION.
CITY will be receiving State and/or Federal grant funds. CITY shall pay CONSULTANT for the services performed pursuant to the terms of this Agreement in the time and manner set forth in the “Schedule of Compensation,” attached to and incorporated into this Agreement as “ Exhibit B.” CITY shall pay CONSULTANT an amount not to exceed the amount that is listed in “Exhibit B.” Once this Agreement is executed, the Schedule of Compensation may only be modified by written Amendment pursuant to Section 12 of this Agreement, and may be subject to approval by the City Council.
10. PAYMENT & INVOICES.
The CITY shall pay all undisputed portions of any applicable invoice within forty - five (45) days after receipt of an invoice. In the event the CITY disputes one or more items in an invoice, the CITY shall, within forty -five (45) days after receipt of such invoice, notify the CONSULTANT of the item(s) being disputed and the reason(s) therefore. The CITY may withhold payment for such disputed items until resolution of the dispute.
10. 1 Payment Request. CONSULTANT shall submit a payment request to CITY by the end of each calendar month listing the Services provided, costs of those Services, and total amount due for the month. Invoices may be emailed to:
[email protected]
10.2 Non-Appropriation of Funds. Payments to be made to CONSULTANT by CITY for the Services performed within the current fiscal year are within the current fiscal budget and within an available, unexhausted and unencumbered appropriation of CITY. In the event CITY does not appropriate sufficient funds for payment of the Services beyond the current fiscal year, this Agreement shall cover payment for the Services only up to the conclusion of the last fiscal year in which CITY appropriated sufficient funds and shall automatically terminate at that fiscal year’s conclusion.
10.3 CONSULTANT’s acceptance of final payment made pursuant to this Agreement shall constitute a release of CITY from all claims and liabilities for compensation to CONSULTANT for anything completed, finished or relating to the Services. CITY’s payment shall not constitute nor be deemed a release of the responsibility and liability of CONSULTANT for the accuracy and competency of the information provided and/or the Services performed hereunder, nor shall such payment be deemed to be an assumption of r esponsibility or liability by CITY for any defect or error in the Services performed by CONSULTANT and its employees, agents and Subcontracted CONSULTANTs.
10.4 CONSULTANT shall provide CITY with a completed Request for Taxpayer Identification Number and Certification, as issued by the Internal Revenue Agreement No. 32300196
99 Service. If any sales tax is due for the Services performed by CONSULTANT or materials or products provided to CITY by CONSULTANT , CONSULTANT shall pay the sales tax. CITY shall not reimburse CONSULTANT for sales taxes paid by CONSULTANT.
11. OPTION TO EXTEND AGREEMENT.
When in the CITY’s best interest, this Agreement may only be extended, if the City in its discretion exercises the option to extend pursuant to Section 3.2 and 3.3 of the Agreement. The initial term, plus any option to extend, shall not exceed a total of five (5) years. If no option to extend the Agreement appears in sections 3.2 and
3.3, this Agreement shall not be extended.
12. MODIFICATION OF AGREEMENT.
This Agreement may be amended, modified, or otherwise altered, or its provisions waived, only upon mutual consent of the Parties by written amendment, and as authorized by the Oxnard Municipal Code, Article IV, Sections 4-59 and 4-60.
13. TERMINATION OF AGREEMENT.
CITY may terminate this Agreement at any time, with or without cause and without penalty, upon fifteen (15) calendar days’ prior written notice pursuant to Section 31 of this Agreement. Such termination shall be effective on the date specified in the notice, or if no date is specified, then fifteen (15) calendar days from the date of the notice. CITY shall be liable to CONSULTANT only for work done by CONSULTANT up to and including the date of termination of this Agreement unless the termination is for cause, in which event CONSULTANT need be compensated only to the extent required by law. CONSULTANT may terminate this Agreement at any time during the term of the Agreement by giving the CITY sixty (60) calendar days’ prior written notice.
14. INDEPENDENT CONTRACTOR
CONSULTANT is and shall at all times remain, as to CITY, a wholly independent contractor. Neither CITY nor any of its employees or agents shall have control over the conduct of CONSULTANT or any of its employees, except as stated in this Agreement.
CONSULTANT has and shall retain the right to exercise full control over the employment, direction, means of performance, location, compensation and discharge of all persons assisting CONSULTANT. This Agreement shall not be interpreted to prevent or preclude CONSULTANT from rendering any services for CONSULTANT’s own account or to any other person or entity as CONSULTANT in its sole discretion shall determine; provided, however, that performing such services shall not materially interfere with the Services the CONSULTANT shall perform for the CITY. The CITY retains the right to provide general instructions to and observe the CONSULTANT in the performance of all services done on behalf of the CITY.
Agreement No. 32300196
100
CONSULTANT and its employees and agents have no authority, express or implied, to act on behalf of CITY in any capacity, to incur any debt, obligation or liability on behalf of CITY, bind CITY in any manner, or otherwise act on behalf of CITY as an agent. CONSULTANT and its employees are not employees of CITY. CONSULTA NT and its employees are not entitled to receive from CITY any of the benefits or rights afforded employees of CITY, including but not limited to reserve leave, sick leave, vacation leave, holiday leave, compensatory leave, Public Employees Retirement System benefits, and health, life, dental, long-term disability and workers’ compensation insurance benefits. CONSULTANT shall not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of CITY.
15. LAWFUL PERFORMANCE.
15.1 Lawful Performance. CONSULTANT shall abide by all Federal, State, and Local Laws and Regulations as may be related to the performance of duties under this Agreement. CONSULTANT, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement.
16. SAFETY REQUIREMENTS.
CONSULTANT shall not perform any services for the CITY when the CONSULTANT is impaired by alcohol or a controlled substance. When there is reasonable cause to believe that any person has violated this provision, that person shall be immediately removed from the premises and be subject to any applicabl e civil and/or criminal penalties under the CITY’s Code and/or under state law. All work performed under this Agreement shall be performed in such a manner as to provide safety to the public. The CITY reserves the right to issue restraining or cease and desist orders to CONSULTANT when unsafe or harmful acts are observed or reported relative to the performance of the work under this Agreement. The acceptance of CONSULTANT's work by CITY shall not operate as a release of the CONSULTANT from such standard of care and workmanship.
17. OWNERSHIP OF CONSULTANT’S WORK PRODUCT, CONFIDENTIALITY & DISCLOSURE.
CITY shall be the owner of any and all technical documents and records, including, computations, plans, correspondence, and/or other pertinent data and information, both hard copy and electronic, gathered or prepared by CONSULTANT in performance of this Agreement and shall be entitled to immediate possession of the same upon completion of the work under this Agreement, or at any earlier or later time when the same may be requested by CITY.
Agreement No. 32300196
101
17.1. Records and Inspections. The CONSULTANT shall maintain full and accurate records, with respect to all services and matters covered under this Agreement. The CITY shall have free access at all reasonable times to such records, both hard copy and electronic, and the right to examine and audit the same and to make transcripts therefrom, and to inspect all program data, documents, proceedings, and activities.
17.2. Deliverables. CONSULTANT shall deliver to the CITY the studies, plans, specifications, or other documents as are identified in the Scope of Services; and CONSULTANT shall, upon completion of all work or termination of this Agreement, submit to the CITY all information developed in the course of the CONSULTANT's services. CONSULTANT shall, in such time and in such form as the CITY may require, furnish reports concerning the status of services required under this Agreement. CONSULTANT shall, upon request by CITY and upon completion or termination of this Agreement, deliver to the CITY all material furnished to CONSULTANT by the CITY.
17.3. Ownership – Generally. All inventions, discoveries, enhancements, changes, or improvements of computer programs developed pursuant to this Agreement shall be the property of the CITY, and all patents or copyrights shall be assigned to the CITY, unless otherwise agreed. CONSULTANT agrees that CITY may make modifications to computer software furnished by CONSULTANT without infringing CONSULTANT’s copyright or any license granted to CITY, unless otherwise agreed.
17.4. Ownership of Documents. Every report, draft, work product, map, record, and other document reproduced, prepared, or caused to be prepared by the CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of the CITY.
17.5. Confidentiality. Information that is exempt from disclosure to the public is confidential. This includes information relating to the past, present, or future affairs of the CITY or information belonging to a third party whose information is in the CITY’s possession or control under obligations of confidentiality.
CONSULTANT may be granted access to information that is exempt from disclosure to the public (Government Code Section 6254 and 6254.16) and may contain “trade secrets” (see Government Code Section 6254.7(d)) when it is necessary for CONSULTANT to perform its obligations pursuant to this Agreement. If CONSULTANT is granted such access to confidential information, CONSULTANT shall not be considered to be a member of the public as that term is used in Government Code Section 6254.5.
17.6. Disclosure of Information. CONSULTANT shall not disclose, publish, or authorize others to disclose or publish, design data, drawings, specifications, reports, or other information pertaining to the projects assigned to CONSULTANT by the CITY or other information to which the CONSULTANT has Agreement No. 32300196
102
had access during the term of this Agreement without the prior written approval of the CITY’s Designated Representative during the term of this Agreement and for a period of two (2) years after the termination of this Agreement.
17.7. No Warranty. Other than an obligation upon the CITY to deal in good faith, the CITY makes no warranties and shall bear no liability or responsibility for errors or omissions in any Confidential Information disclosed under this Agreement or for any business decisions made by CONSULTANT in reliance on any Confidential Information disclosed under this Agreement.
18. ASSIGNMENT.
This Agreement is f or the professional services of CONSULTANT. . Any attempt by CONSULTANT to assign the benefits or burdens of this Agreement without the prior written approval of CITY shall be prohibited and shall be null and void. CONSULTANT's services pursuant to this Agreement shall be provided by the CONSULTANT’s Designated Representative or directly under his/her supervision, and CONSULTANT shall not assign another to supervise the CONSULTANT's performance of this Agreement without the prior written approval of CITY, by and through the CITY’s Designated Representative.
19. NOTICE OF BREACH AND OPPORTUNITY TO CURE.
Neither Party will be in breach of this Agreement where the breach is capable of being cured, or until written notice of the breach is received from the non -breaching Party. The Party charged with breach will have fifteen (15) calendar days from the date of receiving such notice in which to cure the breach or otherwise respond. If the circumstances leading to the charge that the Agreement was breached have not been cured or explained to the satisfaction of the other Party within fifteen (15) days from the date on which the breaching Party received notice of breach, the non- breaching Party may terminate this Agreement.
20. NOTICE.
All notices given or required to be given pursuant to this Agreement shall be in writing and may be given by personal delivery or by first -class mail. Notice sent by mail shall be addressed to each Party’s Designated Representative as set forth above in Section 6. When addre ssed in accordance with this Section, such notice shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices shall be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this Section.
21. COVENANTS AND CONDITIONS.
Agreement No. 32300196
103
Each term and each provision of this Agreement to be performed by CONSULTANT shall be construed to be both a covenant and a condition.
22. WAIVER.
CITY’s review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from CONSULTANT’s performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character.
23. INDEMNIFICATION, HOLD HARMLESS & DEFENSE.
23.1 As a separate and independent covenant from CONSULTANT ’s obligations under this section, CONSULTANT shall to the fullest extent permitted by law, immediately defend, indemnify, and hold harmless CITY, its legislative and advisory bodies, and the CITY’s officials, directors, officers, employees, and agents (the “Indemnitees”) from and against all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with CONSULTANT’s performance of this Agreement or CONSULTANT’s failure to comply with any of its obligations contained in this Agreement. Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution.
CONSULTANT’s obligation to indemnify applies unless it is adjudicated that any of the liabilities covered by this Section are the result of the sole active negligence or sole willful misconduct of any of the Indemnitees.
23.2 The duty to defend is a separate and distinct obligation from CONSULTANT’s duty to indemnify. CONSULTANT shall be obligated to defend in all legal, equitable, administrative, or special proceedings, with counsel approved by the CITY Attorney, immediately upon tender to CONSULTANT of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of negligence or willful misconduct by any of the Indemnitees shall not relieve CONSULTANT from its separate and distinct obligation to defend the Indemnitees. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes the obligation to provide i ndependent defense counsel if CONSULTANT asserts that liability is caused in whole or in part by the negligence or willful misconduct of the Indemnitees. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of any of the Indemnitees, CONSULTANT may submit a claim to CITY for reimbursement of reasonable attorneys’ fees and defense costs.
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23.3 The provisions of this Subsection 23.3 apply only in the event that CONSULTANT is a design professional within the meaning of California Civil Code section 2782.8 (“Design Professional”). The term Design Professional, as defined in said section, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
23.3.1 Notwithstanding the provisions of Subsections 23.1 and 23.2 above, to the extent that the services to be provided under this Agreement are those of a Design Professional, CONSULTANT's duty to indemnify, hold harmless, and defend the Indemnitees shall be limited to the extent that any claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT, its officers, agents, employees or subconsultants in the performance of the services described in this Agreement.
23.3.2 In no event shall the costs of defense charged to CONSULTANT exceed the CONSULTANT’s proportionate percentage of fault, except as otherwise set forth in said Civil Code section 2782.8, the provisions of which are incorporated into this Agreement by this reference.
Nothing in this Subsection 23.3 shall be construed to require CONSULTANT to provide indemnification for claims caused by the active negligence or willful misconduct of the Indemnitees.
23.4 The review, acceptance or approval of CONSULTANT’s work or work product by any of the Indemnitees shall not affect, relieve or reduce CONSULTANT’s indemnification or defense obligations. CONSULTANT waives any right of contribution against CITY or any of CITY’s officers, employees, agents, or volunteers arising out of such failure to inspect, review, monitor, or supervise the work performed by CONSULTANT pursuant to this Agreement.
The provisions of this Section shall not be restricted by and do not affect the provisions of this Agreement relating to Section 24. The CONSULTANT’s obligations under this Section of the Agreement shall survive the termination of the Agreement.
23.5 CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify and hold CITY harmless from any and all taxes, assessments, penalties, and interest asserted against CITY by reason of the independent contractor relationship created by this Agreement. CONSULTANT shall be solely responsible for, and shall save CITY harmless from, all matters relating to the payment of CONSULTANT ’s subcontractors, material suppliers, directors, officers, employees, agents and representatives, including compliance with social security requirements, federal and State income tax withholding, and all other regulations governing employer - employee relations, as applicable. CITY shall have the right to offset against the amount of any compensation due to CONSULTANT under this Agreement any Agreement No. 32300196
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amount due to CITY from CONSULTANT as a result of its failure to promptly pay to CITY any reimbursement or indemnification arising under this Section.
24. INSURANCE.
CONSULTANT shall obtain and maintain during the performance of any services under this Agreement the insurance coverages listed within “Exhibit C”, which is attached hereto and incorporated herein by this reference, unless the Risk Manager waives, in writing, the requirement that CONSULTANT obtain and maintain such insurance coverages. Such insurance must be issued by a company satisfactory to the Risk Manager. CONSULTANT shall, before performance of any services pursuant to this Agreement, file with the Risk Manager evidence of insurance coverage as specified in “Exhibit C”. Maintenance of insurance coverages by CONSULTANT is a material element of this Agreement. C ONSULTANT’S failure to maintain or renew insurance coverages or to provide renewal evidence shall be considered a material breach of this Agreement.
25. LIVING WAGE REQUIREMENTS.
During the term of this Agreement, CONSULTANT understands and agrees that if Living Wages are applicable subject to the 2002 Oxnard City Council Living Wage Policy, attached as “Exhibit D” to this Agreement, CONSULTANT will pay and/or provide the wages and/or benefits required therein to all of its employees engaged in whole or in part in performing the services provided for by this Agreement. The duty to pay the correct wage is the responsibility of the CONSULTANT.
26. PREVAILING WAGE REQUIREMENTS.
26.1. A
pplication. The payment of State prevailing wages as designated for Ventura County shall apply to public works projects. However, this section shall not apply to work performed on a public works project of twenty -five thousand dollars ($25,000) or less when the proj ect is for construction, alteration, demolition, installation, or repair work; or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work. Prevailing wages are required to be paid to all workers, including subcontracted employees.
26.2. Compliance with California Department of Industrial Relations (DIR).
To determine if this Agreement is subject to compliance monitoring and enforcement, go to:
https://www.dir.ca.gov/Public-Works/PublicWorksSB854FAQ.html
26.3. Contract Splitting. It is unlawful to split, or separate into small portions, work orders, projects, purchases, or public works projects for the purpose of evading these prevailing wage requirements.
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26.4. Use of Prevailing Wages vs. Living Wages. In the event that there is a difference between the amount of wages to be paid under the CITY of Oxnard’s local Living Wage requirements and the requirements of this provision, the wage rate that is the higher of the two shall be applicable to this Agreement.
The duty to pay the correct wage is the responsibility of the CONSULTANT.
27. [RESERVED]
28. [RESERVED]
29. [RESERVED]
30. DISPUTES.
Except as otherwise provided in these provisions, any dispute concerning a question of fact arising under this Agreement, shall be decided by the CITY’s Designated Representative, who shall reduce this decision to writing and mail a copy to the CONSULTANT. The decision of the CITY’s Designated Representative shall be final and conclusive unless CONSULTANT requests mediation within ten (10) calendar days. Pending final decision of a dispute, the CONSULTANT shall proceed diligently with the performance of the Agreement and in accordance with the decision of the CITY’s Designated Representative.
31. DISPUTE RESOLUTION.
Should an unresolved dispute arise out of this Agreement, any Party may request that it be submitted to mediation. The Parties shall meet in mediation within a reasonable time not to exceed forty five (45) days of a request. The mediator shall be agreed to by the mediating Parties. In the absence of an agreement on a mediator, the Parties shall each submit one name from mediators listed by the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed- upon service. The mediator shall be selected by a “blindfold” process. The cost of mediation shall be borne equally by both Parties. Neither Party shall be deemed the prevailing Party. No Party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the Parties but not more than sixty (60) calendar days, unless the maximum time is extended in writing by both Parties.
32. AUDIT.
CITY shall have the option of inspecting, auditing and/or reproducing all records and other written materials: used by CONSULTANT in preparing its billings to CITY as a condition precedent to any payment to CONSULTANT; or for other purposes relating to the Agreement. CONSULTANT will promptly furnish all documents requested by CITY.
Additionally, if this Agreement is in excess of $10,000, the State Auditor may examine and audit CONSULTANT for a period of 3 years after final payment under the Agreement No. 32300196
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Agreement. Regardless of whether a State audit is permitted, CONSULTANT shall maintain and preserve all such records for a period of at least 3 years after final payment under the Agreement or until an audit has been completed and accepted by CITY, whichever occurs later. CONSULTANT shall maintain all such records in CITY or to promptly reimburse CITY for all reasonable costs incurred in conducting the audit at a location other than in CITY, including but not limited to expenses for personnel, salaries, private auditor, tr avel, lodging, meals and overhead. CONSULTANT shall include a copy of this Section in all contracts with its subcontractors, and CONSULTANT shall be responsible for immediately obtaining those records or other written material from its subcontractors upon a request by the State Auditor and/or CITY.
33. ADVERTISING AND PUBLICITY
CONSULTANT shall not use the name of or refer to CITY directly or indirectly in any advertisement, news release, or professional or trade publication without prior written approval from the CITY Manager. This Section shall survive the termination of this Agreement.
34. NONDISCRIMINATORY EMPLOYMENT.
CONSULTANT shall not unlawfully discriminate against any individual based on race, color, religion or religious creed, national origin, ancestry, ethnic group identification, primary language, physical disability, mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, sex, sexual orientation, age, immigration status, citizenship or military and veteran status.
CONSULTANT understands and agrees that it is bound by and will comply with all legal nondiscrimination mandates. For every subcontractor who will perform Services, CONSULTANT shall be responsible for such subcontractor’s compliance with this Section.
35. FORCE MAJEURE.
Neither the CONSULTANT nor the CITY shall be responsible for any delay caused by any contingency beyond their control, including, but not limited to, war or insurrection, walkouts by the Party’s own employees, fires, natural calamities, riots, or demands or requirements of governmental agencies other than the CITY.
36. GOVERNING LAW.
The terms of this Agreement shall be interpreted according to the laws of the State of California. Should litigation occur, venue shall be in the Superior Court of California, County of Ventura.
37. SEVERABILITY.
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If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect and be enforceable.
38. INTEGRATED AGREEMENT.
This Agre ement and the attached exhibits referenced herein to this Agreement represent the entire understanding between the Parties. No verbal agreement or implied covenant shall be held to vary the provisions of this Agreement. This Agreement shall bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns.
39. NO THIRD-PARTY BENEFICIARY.
This Agreement shall not be construed to be an agreement for the benefit of any third-party or parties, and no third party or parties shall have any claim or right of action under this Agreement.
40. AUTHORITY TO EXECUTE.
Each Party hereto expressly warrants and represents that through its Designated Representative it has the authority to execute this Agreement on behalf of its corporation, partnership, business entity, or governmental entity, and warrants and represents that the Designated Representative has the authority to bind each Party to the performance of its obligations hereunder.
41. EXECUTION – COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each such duplicate counterpart shall constitute an original, but they shall not be effective nor enforceable unless and until it is executed with the handwritten signature of an authorized representative of each of the relevant Parties. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterpart executed by the other Party to this Agreement is in the physical possession of the Party seeking enforcement thereof.
42. INCONSISTENT OR CONFLICTING TERMS.
In the event of any contradictions or inconsistencies between any attached documents or exhibits incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control. Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the CITY are not binding upon the CITY’s Agreement No. 32300196
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De
signated Representative unless specifically agreed to in writing, and initiated by CITY’s Designated Representative, as to each additional contractual term or condition.
43. C
APTIONS AND HEADINGS.
T
he captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content, scope, or intent of the provisions described under the respective caption or heading.
44. A
CKNOWLEDGEMENT.
B
y signing below, CONSULTANT acknowledges that it has reviewed the CITY’s CONSULTANT/Professional Services Agreement terms and conditions and insurance requirements and that CONSULTANT hereby agrees to full compliance. [
Signatures on next page]
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In witness whereof, the Parties have entered into this Agreement on the date as written in section 3 and upon signature of all Parties.
CITY OF OXNARD REALITY IMPROV CONNECTION, INC.
John Z. Zaragoza, Mayor1 Date Date
Alexander Nguyen, City Manager
Jennifer Yates, Purchasing Manager
Date
ATTEST:
Katherine Kasmir, CEO
Kimberly Dallape, CFO
Rose Chaparro, CITY Clerk Date
(only if Mayor authorizes)
APPROVED AS TO FORM:
Stephen M. Fischer, CITY Date
Attorney (always required)
1 The City Council must authorize and the Mayor must execute any property lease over $100,000 annually, over 3 years, or both. The City Manager may authorize and execute any such lease up to $100,000 annually if up to 3 years. The Purchasing Manager may authorize and execute any such lease up to $50,000 annually if up to 3 years.
The City requires the following for any contract:
For a corporation, the signatures of the Board President, CEO or Vice President and of the Board Secretary, Assistant Secretary, CFO or Assistant Treasurer; For an LLC, the signatures of at least two managers of the LLC (company directors, not lower-level managers); or
For a partnership, the signature of a partner. If the partnership is a limited partnership, the signer must be a general partner.
If the company has a different structure, or if the above-listed persons are not the appropriate signers, please submit to the City Attorney legally-binding documentation stating who can sign and bind your company.
111
E
XHIBIT A
C
ONSULTANT/PROFESSIONAL SERVICE AGREEMENT
(CITY of Oxnard and Reality Improv Connection, Inc.)
SC
OPE OF SERVICES
Th
e primary objectives of the project include, but are not limited to the following:
• Coordinate and lead community engagement
• Coordinate volunteers and neighborhood councils, and hire temporary employees to participate in cleanup and beautification activities
Task 1: Project Management
February 2023 through June 2024:
The Consultant will coordinate all efforts for the Oxnard Beautification Volunteer Coordination project. The Consultant will provide all professional and support services required to manage, control, track, and report on the progress of work and expenditures provided under this scope of work. The Consultant will facilitate regular project progress meetings and provide monthly written updates on the project status and budget.
The Consultant will coordinate meetings with City staff and community stakeholders. The Consultant is responsible for developing meeting information and an agenda prior to the meeting and meeting minutes within three business days following the meeting with a complete action tracking log.
Th
e Consultant will submit invoices on a monthly basis with all supporting documentation in a format acceptable to the City. Invoices requiring amendment shall be dated according to when the revised invoice is delivered to the City. Invoices shall be delivered electronically to the Project Manager and to [email protected].
The Consultant will meet all goals and objectives with the project completed on June 30, 2024.
Ma
rch 2023 through March 2023:
The Consultant will facilitate a “kick-off” meeting with the City’s staff, at the commencement of the Project, to discuss the scope and parameters of the Project. This includes preparing and distributing a draft agenda in advance of the meeting for review and comment by the City.
The Consultant will develop a detailed project schedule of the project within 2 weeks of the kickoff meeting.
The Consultant will develop a communications protocol to be followed by all team members to be submitted within one week of starting the project. The communication protocol will include standard project communication as well as emergency communication protocols, and will identify clear roles, responsibilities, and authorities, and will establish invoicing procedures and formatting.
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Task 2 – Volunteer Coordination
The Consultant will perform all necessary work to conduct volunteer coordination for the Oxnard Beautification Project, including but not limited to the following:
February 2023:
The Consultant will make connections and confirm with existing community partners including other youth-serving organizations and agencies that serve unhoused youth and families, including Oxnard Unified School District staff that provide services to unhoused youth.
The Consultant will design and develop a detailed community engagement plan including public outreach, public education, volunteer recruitment and engagement, event planning, and execution.
Starting February 2023 – June 2024:
The community engagement plan should target a range of key age and interest groups. The consultant should utilize proven methods to gain participation from community groups, organizations, and individuals. Particular attention should be given to utilizing successful community outreach and facilitation methods unique to students, multicultural communities, and in multiple languages as necessary. Public outreach will include a bilingual social media presence or any other methods deemed valuable by the consultant. The community engagement should include community workdays and volunteerism coordination. Coordinating workday opportunities with local schools, school districts, local organizational groups, etc. should be considered.
The Consultant will perform a community outreach campaign that targets youth and families, utilizing focused outreach for students and multicultural community members to ensure successful recruitment. The consultant will organize and lead regular community cleanup events at the following seven parks, with the support of residents, volunteers, and City staff: Colonia Park, Thompson Park, Community Center East Park, Lathrop Park, Marina West Park, Durley Park, and Kohala Park. The events will also occur at the four park sites that are receiving turf removal beautification as part of the overall grant-funded project (Del Sol Park, Beck Park, Lemonwood Park, and Southwinds Park), and at the Camino del Sol community garden site.
Task 2 Subtasks
2.1 The consultant will coordinate a community volunteerism "Volunteer Corps" campaign.
The consultant will work with residents, and those unemployed and/or unhoused, and/or young people to engage the community in the cleanup and beautification of the identified parks.
2.2 In total, there are an estimated 44 cleanup events to occur over the course of the project at these seven park sites, the previously described four park sites, and the community garden site.
This program will set the foundation to continue community-based cleanups led by Oxnard’s Neighborhood Councils, residents, and youth into the future. The consultant will coordinate with the efforts of the youth education component of the Oxnard Beautification project as beneficial.
2.3 The Consultant will work with community partners to recruit a paid workforce, focusing on the hiring of young people, including those unhoused. This workforce, including volunteering youth and families, will participate in the cleanup activities organized by the Consultant. The work will have the theme of a traveling festival of civic engagement and beautification picking up trash, painting over graffiti as needed, trimming shrubs, and/or pulling weeds, as needed.
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The Consultant will organize activities for some of the cleanup events to include celebratory activities, food, music, art activities, and educational components to build stewardship ethics for the parks.
2.4 As appropriate, the workforce and volunteer participants will support the work of installing native and drought-tolerant landscaping (a related project of the overall Oxnard Beautification grant project), and survey neighborhoods for future improvements.
2.5 At project end, a functioning volunteer program will have been created, with the processes established to continue the program as indefinitely as possible. The project will yield a developed “volunteer corps” that includes residents and youth, including those unhoused, and Neighborhood Councils to engage in the cleanup and beautification of the identified parks.
2.6 The Consultant will create or utilize an existing bilingual social media presence to provide outreach, event information, and education during the project.
2.7 The Consultant will purchase the supplies, and make the payment of wages and stipends necessary to implement the project, as described in Attachment A, Task C, and Task C “OC”. The Consultant will adhere to the project budget described therein.
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EXHIBIT B
CONSULTANT/PROFESSIONAL SERVICE AGREEMENT
(CITY of Oxnard and Reality Improv Connection, Inc.)
SCHEDULE OF COMPENSATION
Staff Costs:
Staff Time (Agency): Staff
Hours
Rate
Per Hour
CCLGP Total $
(total includes 16%
payroll expense &
benefit mark-up)
Local Cash
Match $
In-kind Match $
Party 1
-
Project Director 312 $40.00 $14,477
Party 2
-
Project Manager 1560 $35.00 $63,336
Party 3
-
Volunteer Coordination
Specialist
1560 $25.00 $45,240
Party 4
-
Media / Communications 312 $30.00 $10,858
Party 5
-
Project Support Staff 780 $25.00 $22,620
Party 6
-
Project Support Staff 780 $20.00 $18,282
Subtotal Agency Costs: $174,812 $0 $0
Staff Time Example
(Consultant/Subcontractor):
Staff
Hours
Rate
Per Hour
CCLGP Total $ Local Cash
Match $
In-kind Match $
Party 1
-
Party 2
-
Party 3
-
Subtotal Consultant Costs: $0 $0 $0
Total Staff Costs (Agency & Consultant): $174,812
Indirect Costs:
Approve d
ICAP/
ICRP?
FALSE
If Approved ICAP/
ICRP box is checked,
provide Rate:
Task Notes:
The project will involve adult residents and unemployed and/or homeless individuals in the caretaking of the City's parks and public spaces. A consultant will be contracted to organize and implement a volunteer and paid community caretaking program that will establish a long-term foundation of local volunteerism focused on litter abatement and beautification. The project will create jobs that offer unemployed and homeless individuals to interact with the community and City staff, where they can make connections and receive income as they support Oxnard's litter abatement and beautification.
Other Costs:
You will not be able to fill in the following items. The totals for each "Other Costs" category listed below will automatically calculate from information entered in the itemized other costs section:
Total $
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Travel: $0
Equipment:
$0
Supplies/Materials: Workday supplies (gloves, shovels, wheelbarrows, safety vests)
$6,000
Supplies/Materials: Community Event expenses in connection with workdays
$6,000
Incentives: $0
Other Direct Costs: Wages/stipends for homeless/unemployed residents, 2,816 hours, 16 people ($19.00 x 2,816 units)
$53,504
Payroll taxes and expenses directly related to this payroll 2,816 hours, 16 people ($2.00 x 2,816 units)
$5,632
Additional Other Direct Costs: $0
Subtotals: $71,136
TASK GRAND TOTAL: $245,948
CCLGP TOTAL : $245,948
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EXHIBIT C
CONSULTANT/PROFESSIONAL SERVICES AGREEMENT
(CITY of Oxnard and Reality Improv Connection, Inc.)
INSURANCE REQUIREMENTS
Prior to contract approval, CONSULTANT/SERVICE PROVIDER/SELLER/BIDDER (hereafter referred to as “CONSULTANT”) must procure, agree to maintain and supply evidence of insurance at the levels listed and in accordance with the other provisions listed in this document.
Exhibit INS-DD
INSURANCE REQUIREMENTS FOR CONSULTANTS
(WITH ABUSE AND MOLESTATION REQUIREMENT)
1. Consultant shall obtain and maintain during the performance of any services under this Agreement the following insurance agai nst claims for injuries to persons or damages to property which may arise fro m or in connection with the performance of services hereunder by Consultant, its agents, representatives, employees or subconsultants.
a. Commercial General Liability Insurance, including Contractual Liability, in an amount not less than $1,000,000 combined single limit for bodily injury and property damage for each claimant for general liability with coverage equivalent to Insura nce Services Office Commercial General Liability Coverage (Occurrence Form CG 0001). If a general aggregate limit is used, that li mit shall apply separately to the project or shall be twice the occurrence amount;
b. If the Commercial General Liability Insurance policy referenced in Section 1a. above is not endorsed to include affirmative coverage for sexual abuse or molestation, Vendor shall obtain and maintain a policy covering Sexual Abuse and Molestation with a limit no less than $1,000,000 per occurrence or claim.
c. Business automobile liability insurance in an amount not less than $1,000,000 combined single limit for bodily injury a nd property damage for each claimant for automobile liability with coverage equivalent to Insurance Services Office Automobile L iability Coverage (Occurrence Form CA0001) covering Code No. 1, “any auto”;
d. Workers’ compensation insurance in compliance with the laws of the State of California, and employer’s liability insurance in an amount not less than $1,000,000 per claimant. Additionally, the workers’ compensation policy shall include a waiver of all rights of subrogation which the insurer may have against the City.
2. Consultant shall, prior to performance of any services, file with the Risk Manager certificates of insurance with original endorsements affecting coverage required by this Exhibit INS -B. The certificates and endorsements for each insurance po licy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on the attached forms or on other forms approved by the Risk Manager. All certificates and endorsements are to be received and approved by the Risk Manager before work commences. City reserves the right to require complete certified copies of all required insurance polici es at any time.
The certificates of insurance and endorsements shall be sent via email . If you have not received your request or are having difficulty with electronic upload, contact [email protected]
3. Consultant agrees that all insurance coverages shall be provided by a California admitted insurance carrier with an A.M. Best rating of A:VII or better and shall be endorsed to state that coverage may not be suspended, voided, canceled by either party, or re duced in coverage or limits without 30 days’ prior written notice to the Risk Manager. The Risk M anager shall not approve or accept any endorsement if the endorsement contains “best effort” modifiers or if the insurer is relieved from the responsibility to give such notice.
4. C onsultant agrees that the commercial general liability and business automobi le liability insurance policies shall be endorsed to name City, its City Council, officers, employees and volunteers as additional insureds as respects: liability arising out of activities performed by or on behalf of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, its City Council, officer s, employees and volunteers. The General liability Special Endorsement Form and Automobile Liability Special Endorsement Form attached to this Exhibit INS- B or substitute forms containing the same information and acceptable to the Risk Manager shall be used to provide the endorsements (ISO form CG 2010 11/85 or if not available. CG 2010 with an edition date prior to 01/04 and CG 2037).
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5. The coverages provided to City shall be primary and not contributing to or in excess of any existing City insurance coverages (this must be endorsed). Additionally, the workers’ compensation policy shall include a waiver of all rights of subrogation which the insurer may have against the City. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its City Council, officers, employees and volunteers. The insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
6. Any deductibles or self -insured retentions must be declared to and approved by the Risk Manager. At the option of the Risk Manager, either the insurer shall reduce or eliminate such de ductibles or self -insured retentions as respects City, its City Council, officers, employees and volunteers, or the contractor shall procure a bond guaranteeing payment of losses and related investigations, c laim administration and defense expenses.
7. All i nsurance standards applicable to Consultant shall also be applicable to Consultant’s subconsultants. Consultant agrees to maintain appropriate agreements with subconsultants and to provide proper evidence of coverage upon receipt of a written request from the Risk Manager.
INSTRUCTION FOR SUBMITTING INSURANCE CERTIFICATES AND ENDORSEMENT FORMS
Certificates of Insurance
The sample accord form on the following page is provided to facilitate your preparation and submission of certificates of insurance. You may use this or any industry form that shows coverage as broad as that shown on the attached sample.
Please note the certificate holder address must be as shown on the attached sample accord form with the contract number and insurance exhibit identification information completed. Improperly addressed certificates may delay the contract start -up date because the City’s practice is to return unidentifiable insurance certificates to the insured for clarification as to the contract number. Cancellation provisions must be endorsed to the policy. Modifying the certificate does not change coverage or obligate the carrier to provide notes of cancellation.
Endorsement Forms
Original endorsements are required for general liability and automobile liability insurance policies and must be attached to the applicable certificate of insurance. City preference is that you use the endorsement forms which are attached.
Substitute forms will be accepted, however, as long as they include provisions comparable to the attached.
INS-B.doc
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Exhibit INS-DD
Agreement No. 32300195
SAMPLE
ACORD CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY)
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
CODE SUB-CODE
COMPANIES AFFORDING INSURANCE COVERAGE
INSURED
COMPANY
LETTER A SPECIFY COMPANY NAMES IN THIS SPACE
COMPANY
LETTER B
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
CO
LTR
TYPE OF INSURANCE
POLICY NUMBER
POLICY EFFECTIVE
DATE (MM/DD/YY)
POLICY EXPIRATION
DATE (MM/DD/YY)
LIMITS
A
GENERAL LIABILITY
[x] COMMERCIAL GENERAL LIABILITY
[x] CLAIMS MADE [x] OCCUR.
[ ] OWNER'S & CONTRACTOR'S PROT.
GENERAL AGGREGATE $1,000,000
PRODUCTS COMP/OP AGG. $1,000,000
PERSONAL & ADV. INJURY $1,000,000
EACH OCCURRENCE $1,000,000
FIRE DAMAGE (Any one fire) $
MED. EXPENSE (Any one person) $
A
AUTOMOBILE LIABILITY
[x] ANY AUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON-OWNED AUTOS
GARAGE LIABILITY
COMBINED SINGLE $1,000,000
LIMIT
BODILY INJURY $
(Per person)
BODILY INJURY $
(Per accident)
PROPERTY DAMAGE $
A
EXCESS LIABILITY
UMBRELLA FORM
OTHER THAN UMBRELLA FORM
EACH OCCURRENCE $
AGGREGATE $
A
WORKERS' COMPENSATION
AND
EMPLOYERS' LIABILITY
STATUTORY LIMITS
EACH ACCIDENT $1,000,000
DISEASE-POLICY LIMIT $1,000,000
DISEASE-EACH EMPLOYEE $1,000,000
A
OTHER: Sexual Abuse or Molestation Liability
EACH OCCURRENCE $1,000,000
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/RESTRICTIONS/SPECIAL ITEMS
CERTIFICATE HOLDER
CITY OF OXNARD ℅ Evident ID, Inc.
8520 Allison Pointe Blvd. Ste 223
PMB 5210
Indianapolis, Indiana 462500-4299 US
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE T
HEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
Rev. 2/23 INS-B.doc
Agreement No. 32300196
119
Agreement No. 32300195
Rev. 2/23 INS-B.doc
GENERAL LIABILITY SPECIAL ENDORSEMENT
FOR THE CITY OF OXNARD (the “City”)
SUBMIT IN DUPLICATE
ENDORSEMENT NO.
ISSUE DATE (MM/DD/YY)
PRODUCER
POLICY INFORMATION:
Insurance Company:
Policy No.:
Policy Period: (from) (to)
LOSS ADJUSTMENT EXPENSE Included in Limits
In Addition to Limits
Telephone:
Deductible Self -Insured
Retention (check which) of $
with an Aggregate of $
coverage. Per Occurrence
NAMED INSURED
APPLICABILITY This insurance pertains to the operations, products and/or tenancy of the named insured under all written agreements and permits in force with the City unless checked here in which case only the following specific agreements and permits with the City are covered:
CITY AGREEMENTS/PERMITS
TYPE OF INSURANCE
GENERAL LIABILITY
COMMERCIAL GENERAL LIABILITY
COMPREHENSIVE GENERAL LIABILITY
OWNERS & CONTRACTORS PROTECTIVE
Claims Made
Retroactive Date
Occurrence
OTHER PROVISIONS
COVERAGES
LIABILITY LIMITS IN THOUSANDS $
EACH OCCURRENCE
AGGREGATE
GENERAL
PRODUCTS/COMPLETED OPERATIONS
PERSONAL & ADVERTISING INJURY
FIRE DAMAGE
Underwriter=s representative for claims pursuant to this insurance.
CLAIMS:
Name:
Address:
Telephone: ( )
In consideration of the premium charged and notwithstanding any inconsistent statement in the policy to which this endorsement is attached or any endorsement now or hereafter attached thereto, insurance company agrees as follows:
1. INSURED. The City, its officers, agents, employees and volunteers are included as insureds with regard to liability and defense of suits arising from the operations, products and activities performed by or on behalf of the named insured.
2. CONTRIBUTION NOT REQUIRED. As respects: (a) work performed by the named insured for or on behalf of the City; or (b) products sold by the named insured to the City; or (c) premises leased by the named insured from the City, the insurance afforded by this policy shall be primary insurance as respects the City, its officers, a gents, employees or volunteers; or stand in an unbroken chain of coverage excess of the named insured’s schedu led underlying primary coverage. In either event, any other insurance maintained by the City, its officers, agents, employees or volunteers shall be in excess of this insurance and shall not contribute with it.
3. SEVERABILITY OF INTEREST. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company’s limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organiz ation would have as a claimant if not so included.
4. CANCELLATION NOTICE. With respect to the interests of the City, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days prior written notice by receipted delivery has been given to the City.
5. PROVISIONS REGARDING THE INSURED’S DUTIES. Any failure to comply with reporting provisions of the policy or breaches or violations of warranties shall not affect coverage provided to the City, its officers, agents, employees or volunteers.
6. SCOPE OF COVERAGE. This policy, if primary, affords coverage at least as broad as:
a. Insurance Services Office Commercial General Liability Coverage, “occurrence” form CG0001; or b. If excess, affords coverage which is at least as broad as the primary insurance form CG0001.
Except as stated above nothing herein shall be held to waive, alter or extend any of the limits, conditions, agreements or exclusions of the policy to which this endorsement is attached.
ENDORSEMENT HOLDER
CITY OF OXNARD ℅ Evident ID, Inc.
8520 Allison Pointe Blvd. Ste 223
PMB 5210
Indianapolis, Indiana 462500-4299 US
AUTHORIZED REPRESENTATIVE
Bro ker/Agent Underwriter
I (print/type name), warrant that I have authority to bind the above-mentioned insurance company and by my signature hereon do so bind this company to this endorsement.
Signature
(original signature required)
Telephone: ( ) Date Signed
Agreement No. 32300196
120
AUTOMOBILE LIABILITY SPECIAL ENDORSEMENT
FOR THE CITY OF OXNARD (the “City”)
SUBMIT IN DUPLICATE
ENDORSEMENT NO.
ISSUE DATE (MM/DD/YY)
PRODUCER
POLICY INFORMATION:
Insurance Company:
Policy No.:
Policy Period: (from) (to)
LOSS ADJUSTMENT EXPENSE Included in Limits
In Addition to Limits
Telephone:
Deductible Self-Insured Retention (check which) of $ with an Aggregate of $ applies to
coverage. Per Occurrence Per Claim (which)
NAMED INSURED
APPLICABILITY. This insurance pertains to the operations, products and/or tenancy of the named insured under all written agreements and permits in force with the City unless checked here in which case only the following specific agreements and permits with the City are covered:
CITY AGREEMENTS/PERMITS
TYPE OF INSURANCE
OTHER PROVISIONS
COMMERCIAL AUTO POLICY
BUSINESS AUTO POLICY
OTHER
LIMIT OF LIABILITY
CLAIMS: Underwriter’s representative for claims pursuant to this insurance.
Name:
Address:
Telephone: ( )
$ per accident, for bodily injury and property damage.
In consideration of the premium charged and notwithstanding any inconsistent statement in the policy to which this endorsement is attached or any endorsement now or hereafter attached thereto, insurance company agrees as follows:
1. INSURED. The City, its officers, agents, volunteers and employees are included as insureds with regard to liability and defense of suits arising from the operations, products and activities performed by or on behalf of the named insured.
2. CONTRIBUTION NOT REQUIRED. As respects: (a) work performed by the named insured for or on behalf of the City; or (b) products sold by the named insured to the City; or (c) premises leased by the named insured from the City, the insurance afforded by this policy shall be primary insurance as respects the City, its officers, agents, employees or volunteers; or stand in an unbroken chain of coverage excess of the named insured’s scheduled underlying primary coverage. In either event, any other insurance maintained by the City, its officers, agents, employees or volunteers shall be in excess of this insurance and shall not contribute with it.
3. SEVERABILITY OF INTEREST. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company’s limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organiz ation would have as a claimant if not so included.
4. CANCELLATION NOTICE. With respect to the interests of the City, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days prior written notice by receipted delivery has been given to the City.
5. PROVISIONS REGARDING THE INSURED’S DUTIES . Any failure to comply with reporting provisions of the policy or breaches or violations of warranties shall not affect coverage provided to the City, its officers, agents, employees or volunteers.
6. SCOPE OF COVERAGE. This policy, if primary, affords coverage at least as broad as:
a. Insurance Services Office Automobile Liability Coverage, “occurrence” form CA0001, code ("any auto"); or b. If excess, affords coverage which is at least as broad as the primary insurance form referenced in the preceding section (1).
Except as stated above nothing herein shall be held to waive, alter or extend any of the limits, conditions, agreements or ex clusions of the policy to which this endorsement is attached.
ENDORSEMENT HOLDER
CITY OF OXNARD ℅ Evident ID, Inc.
8520 Allison Pointe Blvd. Ste 223
PMB 5210
Indianapolis, Indiana 462500-4299 US
AUTHORIZED REPRESENTATIVE
Bro ker/Agent Underwriter
I (print/type name), warrant that I have authority to bind the above-mentioned insurance company and by my signature hereon do so bind this company to this endorsement.
Signature
(original signature required)
Telephone: ( ) Date Signed
Rev. 2/23
Agreement No. 32300196
121
City of Oxnard
Agreement Number CCL-5129-106 AMS
ADV ID: 0722000281
Clean California Local Grant Program (State)
Restricted Grant Agreement
This Restricted Grant Agreement (RGA), between the State of California acting by and through its Department of Transportation, referred to herein as CAL TRANS, and the CITY OF OXNARD, hereinafter referred to as AGENCY, will commence on May 15, 2022, or upon approval by CAL TRANS, whichever occurs later. This RGA is of no effect unless approved by CAL TRANS.
AGENCY shall not receive payment for work performed prior to approval of this RGA and before receipt of Notice to Proceed from CAL TRANS. This RGA shall expire on December 31, 2024.
Recitals
1. Under this RGA, CAL TRANS intends to convey State restricted grant funds to AGENCY, pursuant to Budget Act Line Item 2660-101-0046T, who will implement the project pursuant to the attached Approved Grant Application and Amendment(s) to Grant Application, Attachment Ill under the terms, covenants, and conditions of this RGA.
2. CAL TRANS and AGENCY intend that only funds that are authorized as restricted grants will be subject to this RGA, and that no funds that should be the subject of a Joint Powers Agreement, lnteragency Agreement, or other non-grant agreement shall be subject to this RGA.
Now, Therefore, based upon the terms, covenants, and conditions of this RGA, the parties agree as follows:
Section I
AGENCY Agrees:
To timely and satisfactorily complete all Project work described in Attachment Ill ("Project Work") within the project budget and in accordance with the items of this RGA.
Section II
CAL TRANS Agrees:
That when conducting an audit of the costs claimed by AGENCY under the provisions of this RGA, to conduct the audit in accordance with applicable laws and regulations.
Section Ill
It Is Mutually Agreed:
1. Under this RGA, CAL TRANS will convey State grant restricted funds to AGENCY, pursuant to Budget Act Line Item 2660-101-0046T, and AGENCY will use the funds to only conduct the scope
of work identified in this agreement and authorized by Streets and Highway Code section 91.41 The funds subject to this RGA must be identified as available to a public entity that is responsible for implementing the scope of work authorized under the Clean California Local Grant Program in CAL TRANS' budget, and AGENCY represents and warrants that it is a public entity that is responsible for implementing the scope of work authorized under the Clean California Local Grant Program.
Agreement No. 32300196
EXHIBIT D
CONSULTANT/PROFESSIONAL SERVICES AGREEMENT
(CITY of Oxnard and Reality Improv Connection)
RESTRICTED GRANT AGREEMENT
(CITY OF OXNARD AND CALTRANS)
122
City of Oxnard
Agreement Number CCL-5129-106
AMS ADV ID: 0722000281
2. Under this restricted grant, funds may be only used for the purposes set forth in this RGA, AGENCY Resolution (Attachment IV), Approved Grant Application and Amendment(s) to Grant Application (Attachment Ill), and the Grant Program Guidelines (Attachment I), and the funds may only be used for costs and expenses that are directly related to such purpose.
3. AGENCY shall perform all the duties and obligations described in Oxnard Beautification and Clean up Program, hereinafter "Project", subject to the terms and conditions of this RGA and Approved Grant Application and Amendment(s) to Grant Application (Attachment Ill), which are attached hereto as Attachment Ill.
4. The resolution authorizing AGENCY to execute this RGA pertaining to the above-described Project is attached hereto as Attachment IV.
5. AGENCY is not requesting an advance payment pursuant to California Streets and Highways Code section 94.41 (e) and the parties agree that AGENCY must satisfy all of the requirements of California Streets and Highways Code section 94.41 (e).
6. All services performed by AGENCY pursuant to this RGA shall be subject to and performed in accordance with California Streets and Highways Code §91.41 including, but not limited to, Government Code Section 14460(a)(1), as well as all applicable Federal, State, and Local laws, regulations, and ordinances, all applicable CAL TRANS policies and procedures, and all applicable CAL TRANS published manuals, including, but not limited to, the Grant Program Guidelines (Attachment I).
California Government Code Section 14460(a)(1) provides: "The department [CAL TRANS], and external entities that receive state and federal transportation funds from the department, are spending those funds efficiently, effectively, economically, and in compliance with applicable state and Federal requirements. Those external entities include, but are not limited to, private for profit and nonprofit organizations, local transportation agencies, and other local agencies that receive transportation funds either through a contract with the department or through an agreement or grant administered by the department."
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7. Project funding is as follows:
Fund Title
Clean California Local Grant
Funds
Cash Local Match
Value of Third-Party In-Kind
Contributions
Total of other fund sources
(not in-kind contributions)
Fund Source
State General Fund (0001)
Budget Item 2660-130-001
State Program Code
20.30.010.900
FY 2021/22
FY2022/231
Agency Provided
Agency Provided
Agency Provided
Total Project Costs
City of Oxnard
Agreement Number CCL-5129-106
AMS ADV ID: 0722000281
Dollar Amount
$887,282.00
$2,661,847.00
$0.00
$0.00
$0.00
$3,549,129.00
No in-kind contributions may be made unless the amount and type of the contribution is identified above.
For Caltrans Use Only
I hereby Certify upon my own personal knowledge that budgeted funds are available for encumbrance.
Jennie Yee (},., A-•- o ft Jlp� 05/09/2022 $3,549,129.00 Accounting Officer Printed Ac4unting o6<'cer Date Amount Certified Name Signature
8. This RGA is exempt from the legal review and approval by the Department of General Services, pursuant to Legal Opinions of the Attorney General: 58 Ops. Cal. Atty. Gen. 586 (1975), 63 Ops.
Cal. Atty. Gen. 290 (1980), 7 4 Ops. Cal. Atty. Gen. 10 (1991 ), and 88 Ops. Cal. Atty. Gen. 56.
9. Notification of Parties
a. AGENCY's Project Manager for Project is Kevin Thompson, (805) 385-7951. b. CAL TRANS' Contract Manager is Tammi Altamirano, (213) 366-2601. "Contract Manager" as used herein includes his/her designee.
c. All notices herein provided to be given, or which may be given, by either party to the other, shall be deemed to have been fully given when made in writing and received by the parties at their respective addresses:
CITY OF OXNARD
Attention: Kevin Thompson, Parks Manager
Phone Number: (805) 385-7951
Email: [email protected]
305 West Third Street, East Wing, 2nd Floor
Oxnard, California 93030
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California Department of Transportation
District 07, Local Assistance
City of Oxnard
Agreement Number CCL-5129-106
AMS ADV ID: 0722000281
Attention: Tammi Altamirano, Clean California Grant Manager Phone Number: (213) 366-2601
Email: [email protected]
100 S. Main Street
Los Angeles, California 90012
10. Period of Performance
a. Reimbursable work under this RGA shall begin no earlier than on May 15, 2022, following the written approval of CAL TRANS and AGENCY's receipt of the Notice to Proceed letter of this RGA by CAL TRANS. All reimbursable work shall terminate no later than June 30, 2024.
Project closeout and final invoicing to CAL TRANS must be submitted no later than November 1, 2024. Work incurred after June 30, 2024 will not be reimbursed. Payment shall be forfeit for any and all invoicing submitted to CAL TRANS after November 1, 2024. Notwithstanding the foregoing, Caltrans will reimburse for actual close out costs incurred by AGENCY through November 1, 2024 (which, in total, shall not exceed 5% of the grant award). b. If requested by the CAL TRANS Contract Manager, AGENCY will attend a kickoff meeting with CAL TRANS to be scheduled within one (1) week from receipt of Notice to Proceed sent by CALTRANS.
11. Changes in Terms/Amendments
This Agreement may only be amended or modified by mutual written agreement of the parties.
12. Cost Limitation
a. The maximum total amount granted and reimbursable to AGENCY pursuant to this RGA by CAL TRANS shall not exceed $3,549,129.00.
b. It is agreed and understood that the CCLGP funds are limited to the amount granted.
CAL TRANS will only reimburse the cost of services actually incurred in accordance with the provisions of this RGA and as authorized by the CAL TRANS Contract Manager at or below that fund limitation established herein.
13. Termination
a. CAL TRANS reserves the right to terminate this RGA upon written notice to AGENCY at least 30 days in advance of the effective date of such termination in the event CAL TRANS determines (at its sole discretion) that AGENCY failed to proceed with PROJECT Work in accordance with the terms of this RGA. In the event of termination for convenience, CAL TRANS will reimburse AGENCY for all allowable, authorized, and non-cancelled costs up to the date of termination.
AGENCY shall return any unused advance amounts which cannot be supported by eligible expenditure documentation.
b. This RGA may be terminated by either party for any reason by giving written notice to the other party at least 30 days in advance of the effective date of such termination. In the event of termination for convenience, CAL TRANS will reimburse AGENCY for all costs that are expressly allowable, pre-authorized in writing, and non-cancellable, up to the date of termination.
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EXHIBIT E
C
ONSULTANT/PROFESSIONAL SERVICES AGREEMENT
(CITY of Oxnard and Reality Improv Connection, Inc.)
FEDERAL & STATE FUNDING - CALTRANS PROJECTS
The provisions of Exhibit E hereof are from the Caltrans Local Assistance Procedures Manual (“LAPM”) as Exhibit 10- R thereto dated September 2022. The provisions listed below are from Exhibit 10-R for which there is not a comparable provision otherwise in this Agreement. A complete copy of Exhibit 10-R can be found on the web at Dhttps://dot.ca.gov/programs/local-assistance/forms/local-assistance-procedures-manual-forms. Certain provisions of this Exhibit E only apply if the box immediately to the left of the Section is checked. If a box is to the left of any Section of this Agreement and it is not checked, the provision does not apply to this Agreement. If there is no check box provided, the provision applies to this Agreement. In the event of any contradictions or inconsistencies between these provisions and the provisions of the Agreement itself, the terms of this Exhibit shall control. For purposes of this Exhibit, the phrase “CONTRACT ADMINISTRATOR” shall be City’s Designated Representative as identified in Section 20 of this Agreement.
A
RTICLE I - INTRODUCTION
A. 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 CITY harmless from any and all claims that may be made against CITY based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.
B. 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 CONSULTANT.
C. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
D. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
A
RTICLE II - CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the CITY’s Contract Administrator to determine, if 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. CONSULTANT’s Project Manager shall meet with CITY’s Contract Administrator, as
141
needed, to discuss progress on the AGREEMENT.
ARTICLE III – STATEMENT OF WORK
☐ A. CONSULTANT Services
Volunteer Coordinator Services as outlined in Exhibit A
☐ B. Right of Way
☐ Right of Way requirements are to be determined and shown by CONSULTANT;
☐ Land surveys and computations with metes and bounds descriptions are to be made; and,
☐ Right of Way parcel maps are to be furnished.
☐ C. Surveys
☐ CONSULTANT has the responsibility for performing preliminary or construction surveys.
☐ D. Subsurface Investigations
CONSULTANT has responsibility for making subsurface
investigations. If borings or other specialized services are to be made by others under the supervision of CONSULTANT,
appropriate provisions are to be incorporated, including the following ___________________________________.
Archaeological testing and data recovery guidance can be found in the Standard Environmental Reference.
E. CITY Obligations
All data applicable to the project and in possession of CITY, another agency, or government agency that are to be made available to CONSULTANT are referred to in the AGREEMENT.
Any other assistance or services to be furnished to CONSULTANT are to be stated clearly.
☐ F. Conferences, Site Visits, Inspection of Work
This AGREEMENT provides for conferences as needed, visits to the site, and inspection of the work by representatives of the CITY, State, and/or FHWA. Costs incurred by CONSULTANT for
meetings, subsequent to the initial meeting shall be included in the fee.
☐ G. Checking Shop Drawings
This Agreement requires the preparation of construction drawings which must be checked. CONSULTANT agrees that the payment for checking shop drawings by CONSULTANT is included in the fee charged by CONSULTANT under this AGREEMENT.
☐ H. CONSULTANT Services During Construction
Agreement No. 32300196
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The extent, if any of CONSULTANT’s services during the course of construction as material testing, construction surveys. etc., are specified in the AGREEMENT together with the method of payment for such services.
☐ I. Documentation and Schedules
AGREEMENTs where appropriate, shall provide that
CONSULTANT document the results of the work to the
satisfaction of CITY, and if applicable, the State and FHWA. This may include preparation of progress and final reports, plans, specifications and estimates, or similar evidence of attainment of the AGREEMENT objectives.
ARTICLE IV – PERFORMANCE PERIOD
None.
ARTICLE V – ALLOWABLE COSTS AND PAYMENTS
A. The method of payment for the following items shall be at the rate specified for each item, as described in this Article. The specified rate shall include full compensation to CONSULTANT for the item as described, including but not limited to, any repairs, maintenance, or insurance, and no further compensation will be allowed therefore.
B. The method of payment for this AGREEMENT, except those items to be paid for on a specified rate basis, will be based on cost per unit of work. CITY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment-rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead and other estimated costs set forth in the approved Cost Proposal, unless additional reimbursement is provided for, by AGREEMENT amendment. In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds CITY approved overhead rate set forth in the approved Cost Proposal. In the event, CITY determines that changed work from that specified in the approved Cost Proposal and AGREEMENT is required; the actual costs reimbursable by CITY may be adjusted by AGREEMENT amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I,” of this article shall not be exceeded unless authorized by AGREEMENT amendment.
C. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, CITY shall have the right to delay payment or terminate this AGREEMENT.
D. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this AGREEMENT.
E. H. CONSULTANT will be reimbursed promptly according to California Regulations Agreement No. 32300196
143
upon receipt by CITY’s Contract Administrator of itemized invoices in duplicate.
I
nvoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due CITY including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT’s work. Invoices may be e-mailed to: [email protected]
F. The total amount payable by CITY including the fixed fee shall not exceed $245,948.
G. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
ARTICLE VI – TERMINATION
None.
ARTICLE VII - COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS
A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to CITY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Government Code § 8546.7, the CONSULTANT, Subconsultants, and 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 Agreement No. 32300196
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offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. 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.
ARTICLE IX 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 AGREEMENT, shall be reviewed by CITY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by CITY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by CITY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. 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 Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, 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 CONSULTANT and approved by CITY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by CITY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, CITY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. 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 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 Agreement No. 32300196
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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, 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:
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 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. CONSULTANT may submit to 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 CITY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO CITY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply Agreement No. 32300196
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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 X – SUBCONTRACTING
A. 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.
E. Any substitution of Subconsultants must be approved in writing by the CITY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
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 CONSULTANT on account of the work performed by the subconsultants, to 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 CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent 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 2 percent of the amount due per month for every month that payment is not made.
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. Prompt Payment of Withheld Funds to Subconsultants
The CITY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the CITY, of the contract work, and pay retainage to CONSULTANT based on these acceptances.
The CITY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant.
☐ Method 1: No retainage will be held by the CITY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding Agreement No. 32300196
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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 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 CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant.
This clause applies to both DBE and non-DBE subconsultants.
☐ Method 2: No retainage will be held by the CITY from progress payments due to CONSULTANT. Any retainage kept by CONSULTANT or by a subconsultant must be paid in full to the earning subconsultant within 15 days after the subconsultant’s work is satisfactorily completed. 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 CONSULTANT or subconsultant to the penalties, sanctions, and 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 CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
☐ Method 3: The CITY shall hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the CITY of the contract work and pay retainage to CONSULTANT based on these acceptances.
CONSULTANT or subconsultant shall return all monies withheld in retention from all subconsultants within 15 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the CITY. 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 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 CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT; deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
Any violation of these provisions shall subject the violating 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 CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by Agreement No. 32300196
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CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
A. Prior authorization in writing by CITY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services.
CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by CITY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, CITY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit CITY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established CITY procedures; and credit CITY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by CITY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by CITY.
2. Regulation 2 CFR Part 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 XII – 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 Agreement No. 32300196
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Code r
equiring 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-com pliance). 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 CITY 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 accur ate 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 recor d 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 CONSULTANT under penalty of perjury. The payroll records and all suppor ting documents shall be made available for inspection and copying by CITY repr esentatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspec tion 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 CITY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to 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 Agreement No. 32300196
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LOCAL AGENCY 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 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 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 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 CITY from payments then due.
CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. 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.
F. 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 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 Agreement No. 32300196
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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.
5. Pursuant to Labor Code §1775, 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.
6. If CITY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if 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 CITY.
G. Hours of Labor
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 Agreement No. 32300196
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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.
H. 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 XIII – CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with CITY that may have an impact upon the outcome of this AGREEMENT or any ensuing CITY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing CITY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to CITY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise CITY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either CITY ordinance or State law.
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, Agreement No. 32300196
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through joint ownership or otherwise.
ARTICLE XIV – REBATES, KICKBACK, OR OTHER UNLAWFUL CONSIDERATION
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, 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.
ARTICLE XV – 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 XVI – 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 Agreement No. 32300196
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has, unless exempt, complied with the nondiscrimination program requirements of Gov.
Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, 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. 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. 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 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.
D. 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 CITY shall require to ascertain compliance with this clause.
E. 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. 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 Part 21 - Agreement No. 32300196
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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. 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, 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 XVII – 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 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.
C. E
xceptions 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 XVIII – DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION
A. CONSULTANT, subrecipient (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 CI TY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
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 Agreement No. 32300196
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C
ONSULTANT’s responsibility to verify that the DBE firm is certified as DBE at date of proposal opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found here.
A
ll DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
● 100 percent counts if the materials or supplies are obtained from a DBE manufacturer. ● 60 percent 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. 49CFR26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”.
Consultants who enter into a federally -funded agreement will assist the CITY in a goo d faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 0%. Par ticipation 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, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. 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 AGRE EMENT 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 s cope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and s ubmit Exhibit 15-H : DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidanc e r egarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-a id contracts.
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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 CONSULTANT from future proposing as non-responsible
E. Termination and Substitution of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the CITY’s written consent. 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 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.
11. The CITY determines other documented good cause.
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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 5 days to respond to the notice and advise CONSULTANT and the CITY of the reasons why the use of other forces or sources of materials should not occur.
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 CONSULTANT to the DBE regarding the request.
3. Notices from the DBEs to CONSULTANT regarding the request.
If a listed DBE is terminated or substituted, 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 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 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 CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date.
CONSULTANT shall submit the notifications to the CITY. On work completion, 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.
Upon work completion, CONSULTANT shall complete Exhibit 17-F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and Agreement No. 32300196
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submit it to the CITY within 90 days of contract acceptance. The CITY will withhold $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. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved.
To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the AGREEMENT is commensurate with the work it is actually performing, and other relevant factors.
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. 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 CONSULTANT in writing with the date of certification. Any changes should be reported to CITY’s Contract Administrator within thirty (30) calendar days.
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L. After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10 th 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 XIX - INSURANCE
None.
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 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 governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. 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
None.
ARTICLE XXII – CONTINGENCY FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, CITY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
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ARTICLE XXIII - DISPUTES
None.
ARTICLE XXIV - INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit 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. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by CITY Safety Officer and other CITY representatives.
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, CITY has determined that such areas are within the limits of the project and are open to public traffic.
CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
C. 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 CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever. Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to 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 CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in 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 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 Agreement No. 32300196
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CONSULTANT hereunder to be work made for hire. 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 City without restriction or limitation upon its use or dissemination by City.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract. Any reuse by City for another project or project location shall be at City’s sole risk.
D. 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 federal aid contracts).
E. CITY may permit copyrighting reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the 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
None.
ARTICLE XXVIII – CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by CITY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by CITY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or CITY’s actions on the same, except to CITY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
D. 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 CITY, and receipt of CITY’S written permission.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
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ARTICLE XXIX – NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
ARTICLE XXX - EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by CITY. A copy of the evaluation will be sent to 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 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the CITY fails to pay promptly, the CITY shall pay interest to the contractor, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied.
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 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.
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EXHIBIT F
CONSULTANT/PROFESSIONAL SERVICES AGREEMENT
(CITY of Oxnard and Reality Improv Connection, Inc.)
LIVING WAGE POLICY
Pursuant to the Living Wage Policy adopted July 9, 2002 by the City Council and effective October 1, 2002, the City Manager and City Attorney are directed to include the following language in all standard CONSULTANT/Professional services contracts and all unique trade services contracts governed by the Living Wage Policy.
A. CONSULTANT shall compensate any employee of CONSULTANT who provides services under this Agreement in accordance with the Living Wage Policy, attached hereto and incorporated herein by reference as the Living Wage Policy Exhibit. While this Agreement is in effect, CONSULTANT shall pay such employee no less than $18.22 per hour for each hour that such employee provides services under this Agreement. In addition, while this Agreement is in effect, CONSULTANT shall provide to such employee no less than 96 hours of paid leave per calendar year.
B. CONSULTANT agrees to post, at a location readily accessible to those employees providing services to the CITY, a copy of the Living Wage Policy adopted by City Council on July 9, 2002 and effective October 1, 2002.
C. If CONSULTANT fails to compensate such employee pursuant to the Living Wage Policy, the City Manager or designee shall terminate this Agreement on written notice to CONSULTANT, effective immediately.
D. In addition, if CONSULTANT fails to comply with the Living Wage Policy in any manner, CONSULTANT shall pay to CITY a fine of $500 and shall pay to any employee providing services under this Agreement a penalty of three times the amount or value of the compensation owed to such employee under the Living Wage Policy. CONSULTANT shall pay such fine and penalty within fifteen (15) calendar days after the City Manager or designee provides written notice to CONSULTANT of the amount owed.
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CITY OF OXNARD LIVING WAGE REQUIREMENTS
EFFECTIVE JULY 1, 2022
CONSULTANT shall compensate any employee of CONSULTANT who provides services under this Agreement in accordance with the Living Wage Policy, attached hereto and incorporated herein by reference as Exhibit D. While this Agreement is in effect, CONSULTANT s hall pay such employee no less than $18.22 per hour for each hour that such employee provides services under this Agreement. This hourly rate shall be adjusted on July 1, 2023, and each July 1 thereafter, according to the percentage change in the Consumer Price Index, all items, prepared by the Bureau of Labor Statistics for the Los Angeles area relating to all urban consumers (CPI -U), index base 1982- 84=100, comparing May of the previous year to May of the current year. In addition, while this Agreement is in effect, CONSULTANT shall provide to such employee no less than 96 hours of paid leave per calendar year.
a. CONSULTANT agrees to post, at a location readily accessible to those employees providing services to the CITY, a copy of the Living Wage Policy adopted by the Oxnard City Council on July 9, 2002 and effective October 1, 2002.
b. If CONSULTANT fails to compensate such employee pursuant to the Living Wage Policy, the City Manager or designee shall terminate this Agreement on written notice to CONSULTANT, effective immediately.
c. In addition, if CONSULTANT fails to comply with the Living Wage Policy in any manner, CONSULTANT shall pay to CITY a fine of $500 and shall pay to any employee providing services under this Agreement a penalty of three times the amount or value of the compensation owed to such employee under the Living Wage Policy. CONSULTANT shall pay such fine and penalty within fifteen (15) calendar days after the City Manager or designee provides written notice to CONSULTANT of the amount owed.
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EXHIBIT G
CONSULTANT/PROFESSIONAL SERVICES AGREEMENT
(CITY of Oxnard and Reality Improv Connection, Inc.)
PREVAILING WAGE
1. CONSULTANT acknowledges that the Project defined in the Agreement between CONSULTANT and CITY is a “public work” as defined in Division 2, Part 7, Chapter 1 of the California Labor Code (“Chapter 1”), and that this Agreement is subject to Chapter 1 and the rules and regulations established by the Director of Industrial Relations (“DIR”) implementing such statutes. CONSULTANT shall perform the Project as a public work. CONSULTANT shall comply with and be bound by all the terms, rules and regulations described in Chapter 1 and the DIR’s rules and regulations as though set forth in full herein.
2. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. CONSULTANT acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and CONSULTANT shall post such rates at each job site covered by this Agreement.
3. CONSULTANT is required to post job site notices, as prescribed by regulation.
See Labor Code Section 1771.4(a)(2).
4. CONSULTANT shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. CONSULTANT shall, as a penalty to CITY, forfeit not more than $200 for each calendar day or portion thereof for each worker paid less than the DIR’s determined prevailing rates for the work or craft in which the worker is employed pursuant to this Agreement by CONSULTANT or any subcontractor. The Labor Commissioner shall determine the amount of the penalty as described in Section 1775.
5. CONSULTANT shall comply with Labor Code Section 1776, which requires CONSULTANT and each subcontractor to (1) keep accurate payroll records and verify such records in writing under penalty of perjury, (2) certify and make such payroll records available for inspection, and (3) inform CITY of the location of the records.
6. CONSULTANT shall comply with Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects for all apprenticeable occupations. Before commenci ng work under this Agreement, CONSULTANT shall provide CITY with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding the Project, CONSULTANT Agreement No. 32300196
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and each of its subcontractors shall submit to CITY a ver ified statement of the journeyman and apprentice hours performed under this Agreement.
7. CONSULTANT may not be debarred or suspended throughout the Agreement Term pursuant to Labor Code Section 1777.1 or 1777.7. If he, she or it becomes debarred or suspended in the Agreement Term, CONSULTANT must immediately notify CITY.
8. CONSULTANT is not qualified to bid on, be listed in a Bid proposal, or engage in the performance of any contract for public work, as defined in Labor Code Sections 1720 through 1861, unless currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5. CONSULTANT shall continue without interruption to stay registered and qualified to perform public work pursuant to Section 1725.5 for the duration of the term of this Agreement. This provision does not apply to construction, alteration, demolition, installation or repair work of $25,000 or less or to maintenance work of $15,000 or less.
9. CONSULTANT acknowledges that 8 hours labor constitutes a legal day’s work.
CONSULTANT shall comply with and be bound by Labor Code Section 1810.
10. CONSULTANT shall comply with and be bound by Labor Code Section 1813 concerning penalties for workers who work excess hours. CONSULTANT shall, as a penalty to CITY, forf eit $25 for each worker employed in the performance of this Agreement by CONSULTANT or by any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work performed by CONSULTANT’s employees in excess of 8 hours per day and 40 hours per week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1 ½ times the basic rate of pay.
11. The Project listed in the Agreement is subject to compliance monitoring and enforcement by the DIR.
12. CONSULTANT shall be responsible for each and every one of its subcontractors’ compliance with Chapter 1, the DIR’s rules and regulations, and Labor Code Sections 1860 and 3700. CONSULTANT shall include in the written contract between it and each subcontractor a copy of, a nd a requirement that each subcontractor shall comply with, those statutory provisions. CONSULTANT shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractors’ compliance, including without limitation, conducting a periodic review of the certified payroll records of each subcontractor, and upon becoming aware of the failure of the subcontractor to pay its workers the specified prevailing rate of wages, CONSULTANT shall diligently take corrective action to halt or rectify any failure.
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13. To the maximum extent, CONSULTANT shall hold harmless, defend (with counsel approved by the City Attorney) and indemnify CITY, its legislative bodies, and its officials, officers, employees and agents from any demand or c laim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above by any person or entity (including CONSULTANT, its subcontractors, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agreement, including without limitation the payment of all attorneys’ fees and other related costs. All duties of CONSULTANT under this Section shall survive Agreement termination.
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C
ONSULTANT/PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF OXNARD AND MERITO FOUNDATION, INC.
B
y This Consultant/Professional Services Agreement (“Agreement”), the CITY of Oxnard (“CITY”) agrees to engage the services of MERITO Foundation, Inc. (“CONSULTANT”), and CONSULTANT agrees to perform the services for CITY as herein described, for the compensation, during the term, and otherwise subject to the covenants and conditions herein set forth. CITY and CONSULTANT may be individually referred to as “Party” or collectively as the “Parties.”
RECITALS:
WHEREAS, this Agreement is entered into as a result of the Restricted Grant Agreement (“RGA”) entered into between CITY and the California Department of Transportation (“CALTRANS”), attached hereto as Exhibit D and incorporated herein by this reference, for OXNARD BEAUTIFICATION PROJECT YOUTH EDUCATION & COORDINATION, Agreement No. 32300182 (the “Project); and WHEREAS, per item 26c in the RGA, CONSULTANT shall adhere to any and all sections, items, attachment(s), and amendment(s) of the RGA in addition to the terms of this Agreement; and
WHEREAS, in the event of any conflict between the terms of this Agreement or any other incorporated document or attachment, and the RGA, the terms of the RGA shall control; and
WHEREAS, CONSULTANT represents that it is fully qualified to perform the consulting and/or professional services required for performance under this Agreement by virtue of its experience and the training, education and expertise of its principals and its employees; and
WHEREAS, in light of the facts set forth above, the CITY desires to retain the services of MERITO Foundation, Inc. a qualified Consultant to provide, on an independent contractor basis, for OXNARD BEAUTIFICATION PROJECT YOUTH EDUCATION & COORDINATION and
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS, CONDITIONS,
AND PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND
VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
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The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth fully herein.
Section 2. SCOPE OF SERVICES
1. SUMMARY DESCRIPTION OF SERVICES. [Oxnard Beautification Project Youth Education & Coordination]
2. PARTIES.
CITY of Oxnard (“CITY”), a general law and municipal corporation of the State of California, located at 300 West Third Street, Oxnard California 93030
MERITO Foundation, Inc. (“CONSULTANT”), a corporation o f the State of California, located at 3897 Market St reet Suites 101,102,107, & 108, Ventura, California 93003
3. TERM OF AGREEMENT: From: February 22, 2023 To: June 30, 2024.
3.1 Time is of the essence in this Agreement.
3.2 All se rvices required of CONSULTANT under this Agreement shall be completed on or before the end of the term of the Agreement.
4. AGREEMENT AMOUNT: $219,001
5. AGREEMENT EXHIBITS.
The following documents memorialized below are the only exhibits to this agreement and are incorporated by reference as though fully set forth herein. In the event of a conflict between the Exhibits and this Agreement, the Agreement controls.
Exhibit A: Statement of Work ( or “Scope of Services”)
Exhibit B: Schedule of Compensation
Exhibit C: Insurance Requirements
Exhibit D: Restricted Grant Agreement
Exhibit E: Federal & State Funding - Caltrans Projects
Exhibit F: Living Wage Policy
Exhibit G: Prevailing Wage Policy
6. DESIGNATED REPRESENTATIVES.
The Designated Representatives listed below shall be authorized to act on behalf of the named Party, be responsible for negotiations and contractual matters, and coordinate with each other to perform the services under this Agreement. Additionally, Agreement No. 32300182
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CONSULTANT’s services shall be performed or immediately supervised by the CONSULTANT’s Representative:
CITY Designated Representative: CONSULTANT Designated Representative:
Name: Kevin Thompson Name: Rocio Lozano-Knowlton Title: Parks Manager Title: Executive Director Phone: 805-385-7951 Phone: 805-729-0442 Email: [email protected] Email: [email protected] Mailing Address (if differs from above): Mailing Address (if differs from above):
1060 Pacific Avenue, Building #3 1501 Cardigan Ave.
Oxnard, California 93030 Ventura, California 93004
7. CONTRACTUAL PREREQUISITES.
7.1 This Agreement must first be executed by the CONSULTANT, after which the Agreement shall be approved as to form by the CITY Attorney, then executed by the Mayor, or an authorized person on behalf of the CITY, and if executed by the Mayor shall also be executed by the CITY Clerk.
7.2 CONSULTANT is advised t hat any recommendation for AGREEMENT award is not binding on CITY until the AGREEMENT is fully executed and approved by CITY.
7.3 A request for modification of the terms, prior to execution of the Agreement, must be made in writing and presented to the Designated Representative of the CITY prior to the time this Agreement is executed.
7.4 All proof of business license, insurance, and W -9 forms is required prior to execution of this Agreement.
7.5 CONSULTANT shall not perform any work under this Agreement until a proof of insurance has been provided to the City as required under Section 24 of this Agreement.
8. CONSULTANT'S SERVICES.
8.1 CONSULTANT shall perform the tasks, obligations, and services set forth in the “Scope of Services,” attached to and incorporated into this Agreement as “Exhibit A.” Once this Agreement is executed, the Scope of Services may only be modified by written Amendment pursuant to Section 12 of this Agreement.
8.2 The Services shall be coordinated with the designated City Project Manager set forth in Exhibit A subject to the direction of the City Manager or Department Director. CONSULTANT hereby designates its Project Manager as set forth in Agreement No. 32300182
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“Exhibit A” as the person responsible for the Services who shall coordinate wit h City’s Project Manager in executing the scope of services under this Agreement.
9. COMPENSATION.
CITY will be receiving State and/or Federal grant funds. CITY shall pay CONSULTANT for the services performed pursuant to the terms of this Agreement in the time and manner set forth in the “Schedule of Compensation,” attached to and incorporated into this Agreement as “Exhibit B.” CITY shall pay CONSULTANT an amount not to exceed the amount that is listed in “Exhibit B.” Once this Agreement is executed, the Schedule of Compensation may only be modified by written Amendment pursuant to Section 12 of this Agreement, and may be subject to approval by the City Council.
10. PAYMENT & INVOICES.
The CITY shall pay all undisputed portions of any applicable invoice within forty - five (45) days after receipt of an invoice. In the event the CITY disputes one or more items in an invoice, the CITY shall, within forty-five (45) days after receipt of such invoice, notify the CONSULTANT of the item(s) being disputed and the reason(s) therefore. The CITY may withhold payment for such disputed items until resolution of the dispute.
10.1 Payment Request. CONSULTANT shall submit a payment request to CITY by the end of each calendar month listing the Services provided, costs of those Services, and total amount due for the month. Invoices may be emailed to:
[email protected].
10.2 Non-Appropriation of Funds. Payments to be made to CONSULTANT by CITY for the Services performed within the current fiscal year are within the current fiscal budget and within an available, unexhausted and unencumbered appropriation of CITY. In the event CITY does not appropriate sufficient funds for payment of the Services beyond the current fiscal year, this Agreement shall cover payment for the Services only up to the conclusion of the last fiscal year in which CITY appropriated sufficient funds and shall automatically terminate at that fiscal year’s conclusion.
10.3 CONSULTANT’s acceptance of final payment made pursuant to this Agreement shall constitute a release of CITY from all claims and liabilities for compensation to CONSULTANT for anything completed, finished or relating to the Services. CITY’s payment shall not constitute nor be deemed a release of the responsibility and liability of CONSULTANT for the accuracy and competency of the information provided and/or the Services performed hereunder, nor shall such payment be deemed to be an assumption of responsibility or liability by CITY for any defect or error in the Services performed by CONSULTANT and its employees, agents and Subcontracted CONSULTANTs.
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10.4 CONSULTANT shall provide CITY with a completed Request for Taxpayer Identification Number and Certification, as issued by the Internal Revenue Service.
If any sales tax is due for the Services performed by CONSULTANT or materials or products provided to CITY by CONSULTANT , CONSULTANT shall pay the sales tax. CITY shall not reimburse CONSULTANT for sales taxes paid by CONSULTANT.
11. OPTION TO EXTEND AGREEMENT.
When in the CITY’s best interest, this Agreement may only be extended, if the City in its discretion exercises the option to extend pursuant to Section 3.2 and 3.3 of the Agreement. The initial term, plus any option to extend, shall not exceed a total of five (5) years. If no option to extend the Agreement appears in sections 3.2 and 3.3, this Agreement shall not be extended.
12. MODIFICATION OF AGREEMENT.
This Agreement may be amended, modified, or otherwise altered, or its provisions waived, only upon mutual consent of the Parties by written amendment, and as authorized by the Oxnard Municipal Code, Article IV, Sections 4-59 and 4-60.
13. TERMINATION OF AGREEMENT.
CITY may terminate this Agreement at any time, with or without cause and without penalty, upon fifteen (15) calendar days’ prior written notice pursuant to Section 31 of this Agreement. Such termination shall be effective on the date specified in the notice, or if no date is specified, then fifteen (15) calendar days from the date of the notice. CITY shall be liable to CONSULTANT only for work done by CONSULTANT up to and including the date of termination of this Agreement unless the termination is for cause, in which event CONSULTANT need be compensated only to the extent required by law.
CONSULTANT may terminate this Agreement at any time during the term of the Agreement by giving the CITY sixty (60) calendar days’ prior written notice.
14. INDEPENDENT CONTRACTOR
CONSULTANT is and shall at all times remain, as to CITY, a wholly independent contractor. Neither CITY nor any of its employees or agents shall have control over the conduct of CONSULTANT or any of its employees, except as stated in this Agreement.
CONSULTANT has and shall retain the right to exercise full control over the employment, direction, means of performance, location, compensation and discharge of all persons assisting CONSULTANT. This Agreement shall not be interpreted to prevent or preclude CONSULTANT from rendering any services for CONSULTANT’s own account or to any other person or entity as CONSULTANT in its sole discretion shall determine; provided, however, that performing such services shall not materially interfere with the Services the CONSULTANT shall perform for the CITY. The CITY retains the right to provide general Agreement No. 32300182
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instructions to and observe the CONSULTANT in the performance of all services done on behalf of the CITY.
CONSULTANT and its employees and agents have no authority, express or implied, to act on behalf of CITY in any capacity, to incur any debt, obligation or liability on behalf of CITY, bind CITY in any manner, or otherwise act on behalf of CITY as an agent.
CONSULTANT and its employees are not employees of CITY. CONSULTANT and its employees are not entitled to receive from CITY any of the benefits or rights afforded employees of CITY, including but not limited to reserve leave, sick leave, vacation leave, holiday leave, compensatory leave, Public Employees Retirement System benefits, and health, life, dental, long -term disability and workers’ compensation insurance benefits.
CONSULTANT shall not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of CITY.
15. LAWFUL PERFORMANCE.
15.1 Lawful Performance. CONSULTANT shall abide by all Federal, State, and Local Laws and Regulations as may be related to the performance of duties under this Agreement. CONSULTANT, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement.
16. SAFETY REQUIREMENTS.
CONSULTANT shall not perform any services for the CITY when the CONSULTANT is impaired by alcohol or a controlled substance. When there is reasonable cause to believe that any person has violated this provision, that person shall be immediately removed from the premises and be subject to any applicable civil and/or criminal penalties under the CITY’s Code and/or under state law. All work performed under this Agreement shall be performed in such a manner as to provide safety to the public. The CITY reserves the right to issue restraining or cease and desist orders to CONSULTANT when unsafe or harmful acts are observed or reported relative to the performance of the work under this Agreement. The acceptance of CONSULTANT's work by CITY shall not operate as a release of the CONSULTANT from such standard of care and workmanship.
17. OWNERSHIP OF CONSULTANT’S WORK PRODUCT, CONFIDENTIALITY & DISCLOSURE.
CITY shall be the owner of any and all technical documents and records, including, computations, plans, correspondence, and/or other pertinent data and information, both hard copy and electronic, gathered or prepared by CONSULTANT in performance of this Agreement and shall be entitled to immediate possession of the same upon completion of the work under this Agreement, or at any earlier or later time when the same may be requested by CITY.
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17.1. Records and Inspections. The CONSULTANT shall maintain full and accurate records, with respect to all services and matters covered under this Agreement. The CITY shall have free access at all reasonable times to such records, both hard copy and electronic, and the right to examine and audit the same and to make transcripts therefrom, and to inspect all program data, documents, proceedings, and activities.
17.2. Deliverables. CONSULTANT shall deliver to the CITY the studies, plans , specifications, or other documents as are identified in the Scope of Services; and CONSULTANT shall, upon completion of all work or termination of this Agreement, submit to the CITY all information developed in the course of the CONSULTANT's services. C ONSULTANT shall, in such time and in such form as the CITY may require, furnish reports concerning the status of services required under this Agreement. CONSULTANT shall, upon request by CITY and upon completion or termination of this Agreement, deliver to the CITY all material furnished to CONSULTANT by the CITY.
17.3. Ownership – Generally. All inventions, discoveries, enhancements, changes, or improvements of computer programs developed pursuant to this Agreement shall be the property of the CITY, and all patents or copyrights shall be assigned to the CITY, unless otherwise agreed. CONSULTANT agrees that CITY may make modifications to computer software furnished by CONSULTANT without infringing CONSULTANT’s copyright or any license granted to CITY, unless otherwise agreed.
17.4. Ownership of Documents. Every report, draft, work product, map, record, and other document reproduced, prepared, or caused to be prepared by the CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of the CITY.
17.5. Confidentiality. Information that is exempt from disclosure to the public is confidential. This includes information relating to the past, present, or future affairs of the CITY or information belonging to a third party whose information is in the CITY’s possession or control under obligations of confidentiality. CONSULTANT may be granted access to information that is exempt from disclosure to the public (Government Code Section 6254 and 6254.16) and may contain “trade secr ets” (see Government Code Section 6254.7(d)) when it is necessary for CONSULTANT to perform its obligations pursuant to this Agreement. If CONSULTANT is granted such access to confidential information, CONSULTANT shall not be considered to be a member of the public as that term is used in Government Code Section 6254.5.
17.6. Disclosure of Information. CONSULTANT shall not disclose, publish, or authorize others to disclose or publish, design data, drawings, specifications, reports, or other information pertaining to the projects assigned to CONSULTANT by the CITY or other information to which the CONSULTANT has had access during Agreement No. 32300182
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the term of this Agreement without the prior written approval of the CITY’s Designated Representative during the term of this A greement and for a period of two (2) years after the termination of this Agreement.
17.7. No Warranty. Other than an obligation upon the CITY to deal in good faith, the CITY makes no warranties and shall bear no liability or responsibility for errors or omissions in any Confidential Information disclosed under this Agreement or for any business decisions made by CONSULTANT in reliance on any Confidential Information disclosed under this Agreement.
18. ASSIGNMENT.
This Agreement is for the professional services of CONSULTANT. . Any attempt by CONSULTANT to assign the benefits or burdens of this Agreement without the prior written approval of CITY shall be prohibited and shall be null and void. CONSULTANT's services pursuant to this Agreement shall be provided by the CONSULTANT’s Designated Representative or directly under his/her supervision, and CONSULTANT shall not assign another to supervise the CONSULTANT's performance of this Agreement without the prior written approval of CITY, by and through the CITY’s Designated Representative.
19. NOTICE OF BREACH AND OPPORTUNITY TO CURE.
Neither Party will be in breach of this Agreement where the breach is capable of being cured, or until written notice of the breach is received from the non-breaching Party.
The Party charged with breach will have fifteen (15) calendar days from the date of receiving such notice in which to cure the breach or otherwise respond. If the circumstances leading to the charge that the Agreement was breached have not been cured or explained to the satisfaction of the other Party within fifteen (15) days from the date on which the breaching Party received notice of breach, the non-breaching Party may terminate this Agreement.
20. NOTICE.
All notices given or required to be given pursuant to this Agreement shall be in writing and may be given by personal delivery or by first -class mail. Notice sent by mail shall be addressed to each Party’s Designated Representative as set forth above in Section 6. When addressed in accordance with this Section, such notice shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices shall be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this Section.
21. COVENANTS AND CONDITIONS.
Each term and each provision of this Agreement to be performed by CONSULTANT shall be construed to be both a covenant and a condition.
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22. WAIVER.
CITY’s review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from CONSULTANT’s performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character.
23. INDEMNIFICATION, HOLD HARMLESS & DEFENSE.
23.1 As a separate and independent covenant from CONSULTANT ’s obligations under this section, CONSULTANT shall to the fullest extent permitted by law, immediately defend, indemnify, and hold harmless CITY, its legislative and advisory bodies, and the CITY’s officials, directors, officers, employees, and agents (the “Indemnitees”) from and against all liabilities regardless of nature, type, or cause, arising out of or resulting from or in connection with CONSULTANT ’s performance of this Agreement or CONSULTANT’s failure to comply with any of its obligations contained in this Agreement. Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. CONSULTANT’s obligation to indemnify applies unless it is adjudicated that any of the liabilities covered by this Section are the result of the sole active negligence or sole willful misconduct of any of the Indemnitees.
23.2 The duty to defend is a separate and distinct obligation from CONSULTANT’s duty to indemnify. CONSULTANT shall be obligated to defend in all legal, equitable, administrative, or special proceedings, with counsel approved by the CITY Attorney, immediately upon tender to CONSULT ANT of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of negligence or willful misconduct by any of the Indemnitees shall not relieve CONSULTANT from its separate and distinct obligation to defend the Indemnitees. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes the obligation to provide independent defense counsel if CONSULTANT asserts that liability is caused in whole or in part by the negligence or willful misconduct of the Indemnitees. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of any of the Indemnitees, CONSULTANT may submit a claim to CITY for reimbursement of reasonable attorneys’ fees and defense costs.
23.3 The provisions of this Subsection 23.3 apply only in the event that CONSULTANT is a design professional within the meaning of California Civil Code Agreement No. 32300182
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section 2782.8 (“Design Professional”). The term Design Professional, as defined in said section, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
23.3.1 Notwithstanding the provisions of Subsections 23.1 and 23.2 above, to the extent that the services to be provided under this Agreement are those of a Design Professional, CONSULTANT's duty to indemnify, hold harmless, and defend the Indemnitees shall be limited to the extent that any claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT, its officers, agents, employees or subconsultants in the performance of the services described in this Agreement.
23.3.2 In no event shall the costs of defense charged to CONSULTANT exceed the CONSULTANT’s proportionate percentage of fault, except as otherwise set forth in said Civil Code section 2782.8, the provisions of which are incorporated into this Agreement by this reference.
Nothing in this Subsection 23.3 shall be construed to require CONSULTANT to provide indemnification for claims caused by the active negligence or willful misconduct of the Indemnitees.
23.4 The review, acceptance or approval of CONSULTANT’s work or work product by any of the Indemnitees shall not affect, relieve or reduce CONSULTANT’s indemnification or defense obligations. CONSULTANT waives any right of contribution against CITY or any of CITY’s officers, employees, agents, or volunteers arising out of such failure to inspect, review, monitor, or supervise the work performed by CONSULTANT pursuant to this Agreement. The provisions of this Section shall not be restricted by and do not affect the provisions of this Agreement relating to Section 24. The CONSULTANT ’s obligations under this Section of the Agreement shall survive the termination of the Agreement.
23.5 CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify and hold CITY harmless from any and all taxes, assessments, penalties, and interest asserted against CITY by reason of the independent contractor relationship created by this Agreement.
CONSULTANT shall be solely responsible for, and shall save CITY harmless from, all matters relating to the payment of CONSULTANT ’s subcontractors, material suppliers, directors, officers, employees, agents and representatives, including compliance with social security requirements, federal and State income tax withholding, and all other regulations governing employer -employee relations, as applicable. CITY shall have the right to offset against the amount of any compensation due to CONSULTANT under this Agreement any amount due to CITY from CONSULTANT as a result of its failure to promptly pay to CITY any reimbursement or indemnification arising under this Section.
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24. INSURANCE.
CONSULTANT shall obtain and maintain during the performance of any services under this Agreement the insurance coverages listed within “Exhibit C”, which is attached hereto and incorporated herein by this reference, unless the Risk Manager waives, in writing, the requirement that CONSULTANT obtain and maintain such insurance coverages. Such insurance must be issued by a company satisfactory to the Risk Manager. CONSULTANT shall, before performance of any services pursuant to this Agreement, file with the Risk Manager evidence of insurance coverage as specified in “Exhibit C”. Maintenance of insurance coverages by CONSULTANT is a material element of this Agreement. CONSULTANT’S failure to maintain or renew insurance coverages or to provide renewal evidence shall be considered a material breach of this Agreement.
25. LIVING WAGE REQUIREMENTS.
During the term of this Agreement, CONSULTANT understands and agrees that if Living Wages are applicable subject to the 2002 Oxnard City Council Living Wage Policy, attached as “Exhibit D” to this Agreement, CONSULTANT will pay and/or provide the wages and/or benefits required therein to all of its employees engaged in whole or in part in performing the services provided for by this Agreement. The duty to pay the correct wage is the responsibility of the CONSULTANT.
26. PREVAILING WAGE REQUIREMENTS.
26.1. A
pplication. The payment of State prevailing wages as designated for Ventura County shall apply to public works projects. However, this section shall not apply to work performed on a public works project of twenty -five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work; or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.
Prevailing wages are required to be paid to all workers, including subcontracted employees.
26.2. Compliance with California Department of Industrial Relations (DIR).
To determine if this Agreement is subject to compl iance monitoring and enforcement, go to:
https://www.dir.ca.gov/Public-Works/PublicWorksSB854FAQ.html
26.3. Contract Splitting. It is unlawful to split, or separate into small portions, work orders, projects, purchases, or public works projects for the purpose of evading these prevailing wage requirements.
26.4. Use of Prevailing Wages vs. Living Wages. In the event that there is a difference between the amount of wages to be paid under the CITY of Oxnard’s local Living Wage requirements and the requirements of this provision, the wage rate that is the higher of the two shall be applicable to this Agreement. The duty Agreement No. 32300182
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to pay the correct wage is the responsibility of the CONSULTANT.
27. [RESERVED]
28. [RESERVED]
29. [RESERVED]
30. DISPUTES.
Except as otherwise provided in these provisions, any dispute concerning a question of fact arising under this Agreement, shall be decided by the CITY’s Designated Representative, who shall reduce this decision to writing and mail a copy to the CONSULTANT. The decision of the CITY’s Designated Representative shall be final and conclusive unless CONSULTANT requests mediation within ten (10) calendar days.
Pending final decision of a dispute, the CONSULTANT shall proceed diligently with the performance of the Agreement and in accordance with the decision of the CITY’s Designated Representative.
31. DISPUTE RESOLUTION.
Should an unresolved dispute arise out of this Agreement, any Party may request that it be submitted to mediation. The Parties shall meet in mediation within a reasonable time not to exceed forty five (45) days of a request. The mediator shall be agreed to by the mediating Parties. In the absence of an agreement on a mediator, the Parties shall each submit one name from mediators listed by the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed- upon service. The mediator shall be selected by a “blindfold” process . The cost of mediation shall be borne equally by both Parties. Neither Party shall be deemed the prevailing Party. No Party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the Parties but not more than sixty (60) calendar days, unless the maximum time is extended in writing by both Parties.
32. AUDIT.
CITY shall have the option of inspecting, auditing and/or reproducing all records and other written materials: used by CONSULTANT in preparing its billings to CITY as a condition precedent to any payment to CONSULTANT; or for other purposes relating to the Agreement. CONSULTANT will promptly furnish all documents requested by CITY.
Additionally, if this Agreement is in excess of $10,000, the State Auditor may examine and audit CONSULTANT for a period of 3 years after final payment under the Agreement.
Regardless of whether a State audit is permitted, CONSULTANT shall maintain and preserve all such records for a period of at least 3 years after final payment under the Agreement or until an audit has been completed and accepted by CITY, whichever occurs later. CONSULTANT shall maintain all such records in CITY or to promptly reimburse CITY Agreement No. 32300182
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for all reasonable costs incurred in conducting the audit at a location other than in CITY, including but not limited to expenses for personnel, salaries, private auditor, travel, lodging, meals and overhead. CONSULTANT shall include a copy of this Section in all contracts with its subcontractors, and CONSULTANT shall be responsible for immediately obtaining those records or other written material from its subcontractors upon a request by the State Auditor and/or CITY.
33. ADVERTISING AND PUBLICITY
CONSULTANT shall not use the name of or refer to CITY directly or indirectly in any advertisement, news release, or professional or trade publication without prior written approval from the CITY Manager. This Section shall survive the termination of this Agreement.
34. NONDISCRIMINATORY EMPLOYMENT.
CONSULTANT shall not unlawfully discriminate against any individual based on race, color, religion or religious creed, national origin, ancestry, ethnic group identification, primary language, physical disability, mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, sex, sexual orientation, age, immigration status, citizenship or military and veteran status.
CONSULTANT understands and agrees that it is bound by and will comply with all legal nondiscrimination mandates. For every subcontractor who will perform Services, CONSULTANT shall be responsible for such subcontractor’s compliance with this Section.
35. FORCE MAJEURE.
Neither the CONSULTANT nor the CITY shall be responsible for any delay caused by any contingency beyond their control, including, but not limited to, war or insurrection, walkouts by the Party’s own employees, fires, natural calamities, riots, or demands or requirements of governmental agencies other than the CITY.
36. GOVERNING LAW.
The terms of this Agreement shall be interpreted according to the laws of the State of California. Should litig ation occur, venue shall be in the Superior Court of California, County of Ventura.
37. SEVERABILITY.
If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modif ied to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect and be enforceable.
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38. INTEGRATED AGREEMENT.
This Agre ement and the attached exhibits referenced herein to this Agreement represent the entire understanding between the Parties. No verbal agreement or implied covenant shall be held to vary the provisions of this Agreement. This Agreement shall bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns.
39. NO THIRD-PARTY BENEFICIARY.
This Agreement shall not be construed to be an agreement for the benefit of any third-party or parties, and no third party or parties shall have any claim or right of action under this Agreement.
40. AUTHORITY TO EXECUTE.
Each Party hereto expressly warrants and represents that through its Designated Representative it has the authority to execute this Agreement on behalf of its corporation, partnership, business entity, or governmental entity, and warrants and represents that the Designated Representative has the authority to bind each Party to the performance of its obligations hereunder.
41. EXECUTION – COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each such duplicate counterpart shall constitute an original, but they shall not be effective nor enforceable unless and until it is executed with the handwritten signature of an authorized representative of each of the relevant Parties. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterpart executed by the other Party to this Agreement is in the physical possession of the Party seeking enforcement thereof.
42. INCONSISTENT OR CONFLICTING TERMS.
In the event of any contradictions or inconsistencies between any attached documents or exhibits incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control. Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the CITY are not binding upon the CITY’s Designated Representative unless specifically agreed to in writing, and initiated by CITY’s Designated Representative, as to each additional contractual term or condition.
43. CAPTIONS AND HEADINGS.
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The capt ions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content, scope, or intent of the provisions described under the respective caption or heading.
44. ACKNOWLEDGEMENT.
By signing below, CONSULTANT acknowledges that it has reviewed the CITY’s CONSULTANT/Professional Services Agreement terms and conditions and insurance requirements and that CONSULTANT hereby agrees to full compliance.
[Signatures on next page]
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In wi
tness whereof, the Parties have entered into this Agreement on the date as written in section 3 and upon signature of all Parties.
CITY
OF OXNARD MERITO FOUNDATION, INC.
Cli ff Rodrigues, President Date John C. Zaragoza, Mayor 1 Date Alexander Nguyen, City Manager
Jennifer Yates,Purchasing Manager
Adam Vega, Secretary Date
ATTEST:
Rose Chaparro, CITY Clerk Date
(only if Mayor authorizes)
APPROVED
AS TO FORM:
Stephen M. Fischer, CITY Date
Attorney (always required)
1 The City Council must authorize and the Mayor must execute any property lease over $100,000 annually, over 3 years, or both. The City Manager may authorize and execute any such lease up to $100,000 annually if up to 3 years. The Purchasing Manager may authorize and execute any such lease up to $50,000 annually if up to 3 years.
The City requires the following for any contract:
• For a corporation, the si gnatures of the Board President, CEO or Vice President and of the Board Secretary, Assistant Secretary, CFO or Assistant Treasurer; • For an LLC, the si gnatures of at least two managers of the LLC (company directors, not lower-level managers); or
• For a partnership, the signature of a partner. If the partnership is a limited partnership, the signer must be a general partner.
If the company has a different structure, or if the above-listed persons are not the appropriate signers, please submit to the City Attorney legally-binding documentation stating who can sign and bind your company.
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EXHIBIT A
CONSULTANT/PROFESSIONAL SERVICE AGREEMENT
(CITY of Oxnard and MERITO Foundation, Inc.)
SCOPE OF SERVICES
Task 1: Project Management
Consultant shall coordinate all efforts of the Project Team including representatives from the City of Oxnard’s Public Works Department (City). The Consultant shall facilitate regular Project progress meetings and provide monthly written updates on the Project status and budget. The Consultant shall provide all professional and support services required to manage, control, track, and report on the progress of work and expenditures provided under this scope of work, including but not limited to:
1. Project coordination meetings with City staff and community stakeholders (biweekly staff meetings). The Consultant is responsible for developing meeting information and an agenda prior to the meeting and meeting minutes within three business days following the meeting with complete action tracking log. Meetings can take place virtually.
2. At the commencement of the Project, the Consultant shall facilitate a “kick-off” meeting with the City’s staff to discuss the scope and parameters of the Project. The Consultant shall prepare and distribute a draft agenda in advance of the meeting for review and comment by the City.
3. Project Schedule. Consultant shall adhere to the project schedule, which shall be updated within 2 weeks of the kickoff meeting.
4. Project Communication. Consultant shall develop a communications protocol to be followed by all team members to be submitted within one week of starting the project.
Communication protocol will include standard project communication as well as emergency communication protocols.
5. Monthly Invoicing. The Consultant shall submit invoices on a monthly basis with all supporting documentation in a format acceptable to the City. Invoices requiring amendment shall be dated according to when the revised invoice is delivered to the City.
Invoices shall be delivered electronically to the Project Manager and to [email protected].
6. Consultant’s approach to successful coordination and management includes establishing effective channels of communication; identifying clear roles, responsibilities and authorities; complete understanding of deliverable requirements; establishment of QA/QC procedures; establishment of invoicing procedures and formatting.
7. Reports. Consultant will submit monthly accomplishment reports.
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Task 2 – Education and Outreach for Educators
The Consultant shall promote the project and recruit teachers, adapt curriculum, coordinate and deliver 3 teacher training activities, and provide access to lesson plans.
The Consultant shall support the instruction of the participating teachers of the 6 lesson plans that will be adapted for the project.
The youth education campaign will involve schools that are located within ¼ mile of the 12 park project sites. These schools include: RJ Frank Academy of Marine Science and Engineering (Camino del Sol Community Garden), Kamala Elementary (Beck Park), Lemonwood Elementary (Lemonwood Park), Cesar Chavez Elementary (Del Sol Park), Rose Avenue Elementary (Thompson Park), Art Haycox Elementary (Southwinds Park), Driffill Elementary (Community Center East Park), Dr. Manuel M. Lopez Academy of Arts and Sciences (Community Center East Park and Durley Park), Elm St. Elementary (Lathrop Park), Marina West Elementary (Marina West Park), McKinna Elementary (Durley Park), and Rose Avenue Elementary (Kohala Park).
Task 3 – Youth Education and Coordination
The consultant should use proven methods to provide education to youth and educators.
Particular attention should be given to utilizing successful education and facilitation methods unique to students, multicultural communities, and in multiple languages as necessary. Partnership opportunities with local schools, school districts, local organizational groups, etc. should be considered.
The c onsultant will perform all necessary work or subcontract as required to conduct youth education project components including but not limited to the following.
1. Provide educational outreach to students with the goal of fostering stewardship, and educating youth on the harms of illegal dumping and litter through the implementation of:
a. Classroom workshops and presentations (estimated 75) b. Coordination with local school and educators
c. Community workshops virtual or in person (estimated 5 planting events) d. Bilingual outdoor education
e. Student and their families’ participation in park cleanup/planting led by Consultant:
5 days expected
2. Coordinate with the separate community volunteerism "Volunteer Corps" campaign. The Consultant will coordinate with the separate but related project in the cleanup and beautification of the identified parks. Coordinating with this separate project will streamline meeting some of the objectives of this youth education project. There will be an estimated 44 cleanup volunteer events led through the separate project, which the Consultant can coordinate with to meet this project’s objectives. The separate but related project will also involve planting days that the students can engage in.
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3. Up to 75 virtual or in-person bilingual presentations to students, as indicated in item 1.a. above.
4. The Consultant will educate students on how to participate in the reduction of litter and the impacts of litter, and how to monitor changes by identifying trash, dumping, and graffiti from before and after the program using reporting techniques.
5. The Consultant will launch and mentor the “Beautiful Oxnard Challenge”, and annual competition among participating youth to create outreach campaigns or artwork by youth that is persuasive, inspiring, culturally relevant, and representative of the community.
6. The Consultant will create and coordinate a volunteer judge panel to review students’ media and artwork campaigns created by youth authors.
7. The Consultant will work with community art organizations to provide tools and guidance to the participating students to design art and media for the project and enter the “Beautiful Oxnard Challenge”.
8. The Consultant will provide in class bilingual presentations, 5-6 virtual or in person presentations to each class, involve students in the design, rehabilitation, and restoration of the parks, as indicated in item 1.a. above.
9. The Consultant will deliver education at the parks (3-5 sessions per school cohort) that includes restoration and beautification of the rehabilitated parks, including one weekend event that involves students’ families, as indicated in item 1.e. above.
10. Consultant will work to reach the following objectives:
a. Increase by 50% the capacity of ten 4th-12th grade educators per school year (20 total) to improve their students’ environmental, climate, and ocean literacy & stewardship behavior as measured by pre-and post-workshop evaluations by 6/2024 b. Increase the stewardship behavior of 450-900 4th-12th grade students per year (~ 1,350 students total) plus many of their parents and siblings, as measured by the amount of waste and debris in the parks and other public spaces in the City of Oxnard in which the participating students take part during the design, rehabilitation, and restoration of the parks, including the parks converted into outdoor schools by 6/2024 c. Increase the knowledge and understanding by 50% of 750-900 4th-12th grade students per year (~1350 total) from Title 1 public schools and after-school programs in economically underprivileged communities in the City of Oxnard of the effects of litter abatement, urban heat island effect, and urban runoff as well as how to mitigate these issues including proper waste disposal, waste reduction, recycling, and urban runoff prevention methods, as measured by pre-and post-project evaluation surveys by 6/2024 d. Reduce the amount of waste and debris within public rights-of-way, pathways, parks, and other public spaces through bilingual (English & Spanish) formal and informal education, outreach, and youth citizen science. Reduced 311 reports of trash, dumping, overgrown landscaping, and graffiti from before and after the program visits each neighborhood, as well as comparing participating neighborhoods with adjacent non- Agreement No. 32300182
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participating neighborhoods. Crime data may also be reviewed for indirect benefits of improved economic activity and neighborhood beautification by 6/2024 e. Enhance, rehabilitate, restore, or install measures to beautify and improve public spaces and mitigate urban island effect by involving previously trained and educated students and their families of the neighboring communities in the planning, rehabilitation, and of the re-habilitated and restored parks by 6/2024
f. Enhance public health, cultural connections, and community place making by improving public spaces for walking, recreation and education by adapting some of the rehabilitated park as outdoor classrooms co-designed, and co-rehabilitated by students of the site’s neighboring communities by 6/2024
g. Advance equity for underserved communities by increasing their stewardship for public spaces through an equitable, culturally sensitive, and inclusive education & outreach campaign voiced and led by local youth by 6/2024 h. Empower, challenge, and motivate at least 30% of the participating students to author education and outreach campaigns that promote awareness and increases stewardship among residents including adults of the neighboring communities to reduce littering & waste production, increases recycling, and prevention of urban runoff through the co-creation and co-implementation of bilingual outreach campaigns that include urban art, conventional and social media
i. Provide 5 to 6 virtual or in-person bilingual presentations to each student cohort (10-16 cohorts depending on grade level) to involve them in the design of the rehabilitation, restoration, and beautification of the parks. j. Delivery of bilingual (as required) outdoor education to the participating students (10-16 cohorts) at the rehabilitated parks. The students will physically take part in the implementation of rehabilitation design including the restoration and beautification of the designated parks in the City of Oxnard through a series of 3-5 sessions during school or after school and including at least one session on a weekend for the students’ families to participate, engage, learn and build stewardship for the parks.
SCHEDULE
1. Adaptation of 7-10 lesson plans from MERITO Foundation’s authored and copyright bilingual curricula for this project to include CA Department of Education’s Environmental Literacy Principles and Concepts (ELP&C) that relate and address: Types of waste, waste fate, impacts of litter, waste & urban runoff; and climate literacy concepts such water cycle, greenhouse, and urban island heat effect; activities that demonstrate how these issues affect public spaces, the marine environment, and human health, as well as the proper methods of waste reduction, waste collection, recycling, and disposal ( Feb. 2023 & Aug 2023)
2. Advertisement of project and recruitment of educators (Feb. 2023 & Aug 2023)
3. Delivery of Professional development (PD) for ten 4th-12th grade participating educators per year (20 total) working in Title schools nearby the rehabilitated parks through three training sessions per year (one in person and two webinars) that include Agreement No. 32300182
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providing access and training on the use of the curricula, online tools and lectures from expert guest speakers ( Feb. – April 2023, and Oct – Dec. 2023)
4. One bilingual in-class presentation per student cohort (10-16 per school year) by MERITO Foundation and City of Oxnard staff to the participating students during school or afterschool program hours (Aug - Sept 2023, & Jan-Feb. 2024)
5. Delivery of 5-6 per virtual or in-person bilingual presentations to each student cohort (For a total of 10-16 cohorts depending on grade level) to involve them in the design of the rehabilitation, restoration, and beautification of the parks. Where possible, the designs will include components that allow the use of the rehabilitated parks to be used as outdoor classrooms given that most Title 1 schools in Oxnard disadvantaged communities do not have green areas, particularly the newer buildings. The designs may include enhanced paving using permeable pavements such as decomposed granite, and wood chips; shade structures; native plant and drought tolerant vegetation; bio-swales, energy saving lighting; bike paths, recycling bins, signage (March-May 2023, & Oct. 2023- April 2024)
6. Delivery of bilingual outdoor education to the participating students (10-16 cohorts) at the rehabilitated parks. The students will physically take part in the implementation of rehabilitation design including the restoration and beautification of the designated parks in City of Oxnard through a series of 3-5 sessions during school or after school and including at least one (likely the last session) on a weekend for the students’ families to participate, engage, learn and build stewardship for the parks. The outdoor classrooms can be used as natural laboratories for hands-on science learning such as the cycle of restoration, habitat restoration, native plant ecology, macro-invertebrates zoology, geo- inquiry, hydrology, etc. (March-June 2023, and Oct 2023-June 2024)
7. Administration of pre and post-project surveys to a representative percentage of participating students and families to assess project impact (Feb. 2023, June 2023, Oct. 2023 & June 2024)
8. Announcement of the ‘Beautiful Oxnard Challenge’, an annual competition amongst participating youth to create outreach campaigns or artwork that is persuasive, inspiring, culturally sensitive, appropriate, representative of the community, and timeless.
All students participating in the education component will be invited, however, entries from youth not enrolled in the participating schools will also be considered if they are residents of the communities involved and are 18 years old or younger (March 2023, and Jan. 2024)
9. MERITO Foundation staff will work with other community art organizations to provide tools and guidance to the students that enter the ‘Beautiful Oxnard Challenge’ including but not limited to National Geographic Society’s Storytelling for Impact tools (April 2023 & 2024)
10. The artwork and media campaigns will be reviewed by a judge panel that include project staff and partners, then the youth authors of top 3 projects will receive cash prizes and recognition. The best artwork, or artwork proposal or outreach campaign will be used for either beautification of the rehabilitated parks, or as part of an on-going outreach Agreement No. 32300182