Contract Template <$200,000
May 2022
Agreement No. __________________________
AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND CITY OF PACIFICA This Agreement is entered into this _____ day of _______________ , 20_____, by and between the County of San Mateo, a political subdivision of the state of California, hereinafter called “County,” and City of Pacifica, a municipal corporation, hereinafter called “Contractor.” * * *
Whereas, pursuant to Section 31000 of the California Government Code, County may contract with independent contractors for the furnishing of such services to or for County or any Department thereof; and
Whereas, it is necessary and desirable that Contractor be retained for the purpose of Bacteria water quality monitoring at Pacifica State Beach for the Special Source Study requested by the Regional Water Quality Control Board.
Now, therefore, it is agreed by the parties to this Agreement as follows:
1. Exhibits and Attachments
The following exhibits and attachments are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A—Services
Exhibit B—Payments and Rates
2. Services to be performed by Contractor
In consideration of the payments set forth in this Agreement and in Exhibit B, Contractor shall perform services for County in accordance with the terms, conditions, and specifications set forth in this Agreement and in Exhibit A (“services”).
3. Payments
In consideration of the services provided by Contractor in accordance with all terms, conditions, and specifications set forth in this Agreement and in Exhibit A, County shall make payment to Contractor based on the rates and in the manner specified in Exhibit B. County reserves the right to withhold payment if County determines that the quantity or quality of the work performed is unacceptable. In no event shall County’s total fiscal obligation under this Agreement exceed thirty two thousand five hundred dollars ($32,500). In the event that the County makes any advance payments, Contractor agrees to refund any amounts in excess of the amount owed by the County at the time of contract termination or expiration. Contractor is not entitled to payment for work not performed as required by this agreement.
4. Term
Subject to compliance with all terms and conditions, the term of this Agreement shall be from August 28, 2023, through December 31, 2024.
5. Termination
ATTACHMENT B
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This Agreement may be terminated by Contractor or by the Director of Office of Sustainability or his/her designee at any time without a requirement of good cause upon thirty (30) days’ advance written notice to the other party. Subject to availability of funding, Contractor shall be entitled to receive payment for work/services provided prior to termination of the Agreement. Such payment shall be that prorated portion of the full payment determined by comparing the work/services actually completed to the work/services required by the Agreement.
County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon the unavailability of Federal, State, or County funds by providing written notice to Contractor as soon as is reasonably possible after County learns of said unavailability of outside funding.
County may terminate this Agreement for cause. In order to terminate for cause, County must first give Contractor notice of the alleged breach. Contractor shall have five business days after receipt of such notice to respond and a total of ten calendar days after receipt of such notice to cure the alleged breach.
If Contractor fails to cure the breach within this period, County may immediately terminate this Agreement without further action. The option available in this paragraph is separate from the ability to terminate without cause with appropriate notice described above. In the event that County provides notice of an alleged breach pursuant to this section, County may, in extreme circumstances, immediately suspend performance of services and payment under this Agreement pending the resolution of the process described in this paragraph. County has sole discretion to determine what constitutes an extreme circumstance for purposes of this paragraph, and County shall use reasonable judgment in making that determination.
6. Contract Materials
At the end of this Agreement, or in the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and other written materials (collectively referred to as “contract materials”) prepared by Contractor under this Agreement shall become the property of County and shall be promptly delivered to County. Upon termination, Contractor may make and retain a copy of such contract materials if permitted by law.
7. Relationship of Parties
Contractor agrees and understands that the work/services performed under this Agreement are performed as an independent contractor and not as an employee of County and that neither Contractor nor its employees acquire any of the rights, privileges, powers, or advantages of County employees.
Contractor shall be solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and County agree that Contractor is in responsible charge of the Services and County shall have no control over the method or means of performance of the Services.
8. Hold Harmless
a. General Hold Harmless
Contractor shall indemnify and save harmless County and its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description resulting from this Agreement, the performance of any work or services required of Contractor under this Agreement, or payments made pursuant to this Agreement brought for, or on account of, any of the following:
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(A) injuries to or death of any person, including Contractor or its employees/officers/agents; (B) damage to any property of any kind whatsoever and to whomsoever belonging; (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply, if applicable, with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended; or (D) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of County and/or its officers, agents, employees, or servants. However, Contractor’s duty to indemnify and save harmless under this Section shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.
The duty of Contractor to indemnify and save harmless as set forth by this Section shall include the duty to defend as set forth in Section 2778 of the California Civil Code.
Notwithstanding anything in this Section to the contrary, Contractor will have no obligation or liability to County under this Section to the extent any otherwise covered claim is based upon: (a) any aspects of the services under this Agreement which have been modified by or for County (other than modification performed by, or at the direction of, Contractor) in such a way as to cause the alleged infringement at issue; and/or (b) any aspects of the services under this Agreement which have been used by County in a manner prohibited by this Agreement.
The duty of Contractor to indemnify and save harmless as set forth by this Section shall include the duty to defend as set forth in Section 2778 of the California Civil Code.
9. Assignability and Subcontracting
Contractor shall not assign this Agreement or any portion of it to a third party or subcontract with a third party to provide services required by Contractor under this Agreement without the prior written consent of County. Any such assignment or subcontract without County’s prior written consent shall give County the right to automatically and immediately terminate this Agreement without penalty or advance notice.
10. Insurance
a. General Requirements
Contractor shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this Section has been obtained and such insurance has been approved by County’s Risk Management, and Contractor shall use diligence to obtain such insurance and to obtain such approval. Contractor shall furnish County with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending Contractor’s coverage to include the contractual liability assumed by Contractor pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days’ notice must be given, in writing, to County of any pending change in the limits of liability or of any cancellation or modification of the policy. b. Workers’ Compensation and Employer’s Liability Insurance Contract Template <$200,000
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Contractor shall have in effect during the entire term of this Agreement workers’ compensation and employer’s liability insurance providing full statutory coverage. In signing this Agreement, Contractor certifies, as required by Section 1861 of the California Labor Code, that (a) it is aware of the provisions of Section 3700 of the California Labor Code, which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of the Labor Code, and (b) it will comply with such provisions before commencing the performance of work under this Agreement.
c. Liability Insurance
Contractor shall take out and maintain during the term of this Agreement such bodily injury liability and property damage liability insurance as shall protect Contractor and all of its employees/officers/agents while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from Contractor’s operations under this Agreement, whether such operations be by Contractor, any subcontractor, anyone directly or indirectly employed by either of them, or an agent of either of them.
Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall not be less than the amounts specified below:
(a) Comprehensive General Liability… $1,000,000
(b) Motor Vehicle Liability Insurance… $1,000,000
County and its officers, agents, employees, and servants shall be named as additional insured on any such policies of insurance, which shall also contain a provision that (a) the insurance afforded thereby to County and its officers, agents, employees, and servants shall be primary insurance to the full limits of liability of the policy and (b) if the County or its officers, agents, employees, and servants have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.
In the event of the breach of any provision of this Section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, County, at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work and payment pursuant to this Agreement.
11. Compliance With Laws
All services to be performed by Contractor pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, ordinances, regulations, and executive orders, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Federal Regulations promulgated thereunder, as amended (if applicable), the Business Associate requirements set forth in Attachment H (if attached), the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in programs and activities receiving any Federal or County financial assistance, as well as any required economic or other sanctions imposed by the United States government or under state law in effect during the term of the Agreement. Such services shall also be performed in accordance with all applicable ordinances and regulations, including but not limited to appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality Contract Template <$200,000
May 2022
assurance regulations. In the event of a conflict between the terms of this Agreement and any applicable State, Federal, County, or municipal law, regulation, or executive order, the requirements of the applicable law, regulation, or executive order will take precedence over the requirements set forth in this Agreement.
12. Non-Discrimination and Other Requirements
a. General Non-discrimination
No person shall be denied any services provided pursuant to this Agreement (except as limited by the scope of services) on the grounds of race, color, national origin, ancestry, age, disability (physical or mental), sex, sexual orientation, gender identity, marital or domestic partner status, religion, political beliefs or affiliation, familial or parental status (including pregnancy), medical condition (cancer-related), military service, or genetic information.
b. Equal Employment Opportunity
Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Contractor’s equal employment policies shall be made available to County upon request.
c. Section 504 of the Rehabilitation Act of 1973
Contractor shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which provides that no otherwise qualified individual with a disability shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of any services this Agreement. This Section applies only to contractors who are providing services to members of the public under this Agreement.
d. Compliance with County’s Equal Benefits Ordinance
Contractor shall comply with all laws relating to the provision of benefits to its employees and their spouses or domestic partners, including, but not limited to, such laws prohibiting discrimination in the provision of such benefits on the basis that the spouse or domestic partner of the Contractor’s employee is of the same or opposite sex as the employee.
e. Discrimination Against Individuals with Disabilities The nondiscrimination requirements of 41 C.F.R. 60-741.5(a) are incorporated into this Agreement as if fully set forth here, and Contractor and any subcontractor shall abide by the requirements of 41 C.F.R. 60–741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
f. History of Discrimination
Contractor certifies that no finding of discrimination has been issued in the past 365 days against Contractor by the Equal Employment Opportunity Commission, the California Department of Fair Contract Template <$200,000
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Employment and Housing, or any other investigative entity. If any finding(s) of discrimination have been issued against Contractor within the past 365 days by the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, or other investigative entity, Contractor shall provide County with a written explanation of the outcome(s) or remedy for the discrimination prior to execution of this Agreement. Failure to comply with this Section shall constitute a material breach of this Agreement and subjects the Agreement to immediate termination at the sole option of the County. g. Reporting; Violation of Non-discrimination Provisions Contractor shall also report to the County the filing by any person in any court any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission, or any other entity charged with the investigation of allegations of discrimination within seventy-five (75) days of such filing, provided that within such seventy-five (75) days such entity has not notified contractor that such charges are dismissed or otherwise unfounded. Such notification to County shall include a general description of the allegations and the nature of specific claims being asserted. Contractor shall provide County with a statement regarding how it responded to the allegations within sixty (60) days of its response and shall update County regarding the nature of the final resolution of such allegations.
Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties, to be determined by the County Executive Officer, including but not limited to the following:
i. termination of this Agreement;
ii. disqualification of the Contractor from being considered for or being awarded a County contract for a period of up to 3 years;
iii. liquidated damages of $2,500 per violation; and/or iv. imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Executive Officer.
To effectuate the provisions of this Section, the County Executive shall have the authority to offset all or any portion of the amount described in this Section against amounts due to Contractor under this Agreement or any other agreement between Contractor and County. h. Compliance with Living Wage Ordinance
As required by Chapter 2.88 of the San Mateo County Ordinance Code, Contractor certifies all contractor(s) and subcontractor(s) obligated under this contract shall fully comply with the provisions of the County of San Mateo Living Wage Ordinance, including, but not limited to, paying all Covered Employees the current Living Wage and providing notice to all Covered Employees and Subcontractors as required under the Ordinance.
Compliance with County Employee Jury Service Ordinance
Contractor shall comply with Chapter 2.85 of the County’s Ordinance Code, which states that Contractor shall have and adhere to a written policy providing that its employees, to the extent they are full-time employees and live in San Mateo County, shall receive from the Contractor, on an annual basis, no fewer than five days of regular pay for jury service in San Mateo County, with jury pay being provided only for each day of actual jury service. The policy may provide that such employees deposit any fees received for such jury service with Contractor or that the Contractor may deduct from an employee’s regular pay Contract Template <$200,000
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the fees received for jury service in San Mateo County. By signing this Agreement, Contractor certifies that it has and adheres to a policy consistent with Chapter 2.85. For purposes of this Section, if Contractor has no employees in San Mateo County, it is sufficient for Contractor to provide the following written statement to County: “For purposes of San Mateo County’s jury service ordinance, Contractor certifies that it has no full-time employees who live in San Mateo County. To the extent that it hires any such employees during the term of its Agreement with San Mateo County, Contractor shall adopt a policy that complies with Chapter 2.85 of the County’s Ordinance Code.” The requirements of Chapter 2.85 do not apply unless this Agreement’s total value listed in the Section titled “Payments”, exceeds two-hundred thousand dollars ($200,000); Contractor acknowledges that Chapter 2.85’s requirements will apply if this Agreement is amended such that its total value exceeds that threshold amount.
13. Retention of Records; Right to Monitor and Audit
(a) Contractor shall maintain all required records relating to services provided under this Agreement for three (3) years after County makes final payment and all other pending matters are closed, and Contractor shall be subject to the examination and/or audit by County, a Federal grantor agency, and the State of California.
(b) Contractor shall comply with all program and fiscal reporting requirements set forth by applicable Federal, State, and local agencies and as required by County. (c) Contractor agrees upon reasonable notice to provide to County, to any Federal or State department having monitoring or review authority, to County’s authorized representative, and/or to any of their respective audit agencies access to and the right to examine all records and documents necessary to determine compliance with relevant Federal, State, and local statutes, rules, and regulations, to determine compliance with this Agreement, and to evaluate the quality, appropriateness, and timeliness of services performed.
14. Merger Clause; Amendments
This Agreement, including the Exhibits and Attachments attached to this Agreement and incorporated by reference, constitutes the sole Agreement of the parties to this Agreement and correctly states the rights, duties, and obligations of each party as of this document’s date. In the event that any term, condition, provision, requirement, or specification set forth in the body of this Agreement conflicts with or is inconsistent with any term, condition, provision, requirement, or specification in any Exhibit and/or Attachment to this Agreement, the provisions of the body of the Agreement shall prevail. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications or amendments shall be in writing and signed by the parties.
15. Controlling Law; Venue
The validity of this Agreement and of its terms, the rights and duties of the parties under this Agreement, the interpretation of this Agreement, the performance of this Agreement, and any other dispute of any nature arising out of this Agreement shall be governed by the laws of the State of California without regard to its choice of law or conflict of law rules. Any dispute arising out of this Agreement shall be venued either in the San Mateo County Superior Court or in the United States District Court for the Northern District of California.
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16. Notices
Any notice, request, demand, or other communication required or permitted under this Agreement shall be deemed to be properly given when both: (1) transmitted via facsimile to the telephone number listed below or transmitted via email to the email address listed below; and (2) sent to the physical address listed below by either being deposited in the United States mail, postage prepaid, or deposited for overnight delivery, charges prepaid, with an established overnight courier that provides a tracking number showing confirmation of receipt.
In the case of County, to:
Name/Title: Krista McDonald; Sustainability Specialist
Address: 455 County Center – 4
th Floor, Redwood City, CA 94063
Telephone: (650)363-4125
Email: [email protected]
In the case of Contractor, to:
Name/Title: Raymund Donguines; Senior Civil Engineer
Address: 151 Milagra Drive
Telephone: (650) 738-3768
Email: [email protected]
17. Electronic Signature
Both County and Contractor wish to permit this Agreement and future documents relating to this Agreement to be digitally signed in accordance with California law and County’s Electronic Signature Administrative Memo. Any party to this Agreement may revoke such agreement to permit electronic signatures at any time in relation to all future documents by providing notice pursuant to this Agreement. * * *
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THIS CONTRACT IS NOT VALID UNTIL SIGNED BY ALL PARTIES. NO WORK WILL COMMENCE
UNTIL THIS DOCUMENT HAS BEEN SIGNED BY THE COUNTY PURCHASING AGENT OR AUTHORIZED DESIGNEE.
For Contractor:
_____________________________
Contractor Signature
_______________
Date
___________________________
Contractor Name (please print)
For County:
______________________________
Purchasing Agent Signature
(Department Head or
Authorized Designee)
County of San Mateo
______________
Date
_____________________________
Purchasing Agent Name (please print)
(Department Head or Authorized Designee)
County of San Mateo
_____________________________
Purchasing Agent or Authorized Designee
Job Title (please print)
County of San Mateo
Contract Template <$200,000
May 2022
Exhibit A
In consideration of the payments set forth in Exhibit B, Contractor shall provide the following services:
Project Background
Pedro Creek and Pacifica State Beach, in the City of Pacifica in San Mateo County, California and are on the Clean Water Act’s 303(d) list for impairment by fecal indicator bacteria (FIB). FIB (fecal coliform, total coliform, E. coli, and Enterococcus) are associated with the feces of warm-blooded animals (ex: human, horse, dog, wildlife) and indicate the potential presence of pathogens that can cause adverse effects in humans (ex: gastroenteritis, skin rash, hepatitis, cholera, typhoid fever). The San Francisco Bay Regional Water Quality Control Board (RWQCB) adopted the San Pedro Creek and Pacifica State Beach Bacteria Total Maximum Daily Load (TMDL) to address these impairments. The TMDL establishes Waste Load Allocations (WLA), or a number of permitted exceedances of water quality objectives (WQOs) that are designed to protect the water contact recreation beneficial use.
The TMDL required that WLAs for Pacifica State Beach be attained by August 1, 2021, and WLAs for San Pedro Creek be attained by August 1, 2028. The WLA at Pacifica State Beach was not met by the August 2021 date, therefore the RWQCB issued a Time Schedule Order (TSO) to meet numeric targets. The TSO requires a special source study with additional monitoring sites to identify potential bacterial sources along the beach including restroom facilities, a restaurant, stormwater pumpstation overflows, pet waste, and marine life including seagulls, as well as from commercial facilities on the south end of the beach.
The special source study is designed to sample and characterize water quality at San Pedro Creek and to the north and south along the beach.
Jurisdictional boundaries from the City of Pacifica and the County drain to Pacifica State Beach; therefore, both municipalities are responsible to meet water quality requirements outlined by RWQCB.
The City of Pacifica and the County agreed to share water quality monitoring and reporting costs. The City of Pacifica will contract with the San Mateo Resource Conservation District (RCD) directly to perform the water quality monitoring and manage the effort. Cost share will be distributed based on jurisdictional acreage within the watershed with City of Pacifica paying 75% of the total cost incurred (up to $97,500) and the County paying the remaining 25% (up to $32,500) to the City. With the completion of all project deliverables, the City of Pacifica will send one invoice to the County for an amount not to exceed $32,500.
The following task (Task 1) are the services that will be completed by the Contractor.
Task 1. Water quality monitoring, data analysis, and submit final report.
Collect water quality samples from 12 unique locations at Pacifica State Beach as part of the Time Schedule Order Special Source Study, attached hereto and hereinafter incorporated by reference as Exhibit A-1. All samples will be processed by a laboratory for fecal indicator bacteria and microbial source tracking (MST) to determine if bacteria is derived from a human source.
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Manage and compile all water quality results electronically in tabular format. Compare results against standard water quality objectives and flag and report any exceedances.
Contractor will summarize water quality results and data analysis in final report. The report will highlight appropriate remediation measures and solutions for any bacteria sources identified using Specific BMPs to reduce bacterial concentrations for discrete sources along the Pacifica State Beach.
Task 1. Deliverable
Submit final report and invoice to County on or around 06/30/2024 Contract Template <$200,000
May 2022
Exhibit B
In consideration of the services provided by Contractor described in Exhibit A and subject to the terms of the Agreement, County shall pay Contractor based on the following fee schedule and terms:
County shall pay Contractor upon receipt of final report and invoice which will be sent on or around 06/30/2024.
Contractor will submit copies of RCD invoices with Contractor invoice to show actual costs incurred.
Pursuant to Section 3 of the Agreement, County’s total payments for services shall not exceed $32,500 All invoices must include:
A. Company letterhead
B. Current remittance address
C. Agreement/Contract #
D. Invoice #
E. Invoice date
F. Total cost
G. Amount owing
H. Amount previously billed
I. Amount remaining on agreement
Contractor shall provide supporting documents concurrently upon invoice submittal, adequate to substantiate the charges. Adequate supporting documents include, but are not limited to: deliverable documents, payroll registers, timesheets, detailed invoices, inspection certificates, activity/participant logs, applicant forms, acceptance letters, survey forms, authorized travel/expense forms, service acknowledgment forms, etc. The types of supporting documents required to verify information on invoices depends on the specified contracted services and, if applicable, costs to be reimbursed. The County reserves the right to withhold payment on invoices until Contractor provides adequate supporting documents. The adequacy of supporting documentation is in the sole discretion of the County.