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SERVICES
AGREEMENT
BETWEEN THE CITY OF RIALTO AND
DOPUDJA & WELLS CONSULTING, INC.
THIS
SERVICES
AGREEMENT
(herein
“Agreement”)
is
made
and
entered
into
this
13th
day of April
2021
by
and between the City of Rialto, a municipal corporation (“City”),
and
DOPUDJA
&
WELLS
CONSULTING,
INC.,
a
California
corporation
(“Consultant”
or “D&W”)). City and Consultant
are sometimes individually referred to as
“Party” or collectively as “Parties”.
RECITALS
A.
City has sought, by issuance of a Request for Proposal or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B.
Following the submission of a proposal or bid for the performa nce of the
services defined and described particularly in Article 1 of this Agreement, Consultant was selected by the City to perform those services.
C.
Pursuant to Chapter 2.48 of the Rialto Municipal Code, City has authority to enter into and execute thi
s Agreement.
D.
The Parties desire to formalize the selection of Consultant for the performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and
described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as fo
llows:
ARTICLE 1.
SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit “A”
and incorporated here
in by this reference, which services may be referred to herein as the “services” or “work” hereunder. As a material inducement for City to enter into this Agreement, Consultant represents that it has the qualifications, experience, and facilities necessar
y to properly perform the services required under this Agreement in a thorough, competent, and professional manner, it meets all local, state, and federal requirements in performing the services, and it is experienced in performing the work and services co
ntemplated herein. Consultant shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all services described herein. Consultant DocuSign Envelope ID: FF06ADFC-B8B5-475A-A80E-550C68CE10AB Page
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shall
perform its services using the degree of care ordinarily exercised
under similar
circumstances.
1.2 Consultant’s Proposal.
This Agreement shall include the Request for Proposal or Invitation for Bids (“Contract Documents”), and the Scope of Services shall include Consultant’s scope of work or Consultant’s
accepted bid proposal (“Accepted Bid”). The Contract Documents and Accepted Bid shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the Contract Documents, Accepted Bid, and/or this A
greement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all
applicable and non
-
conflicting
ordinances, resolutions,
statutes,
rules, and regulations of the City and any federal, state, or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Licenses, Permits, Fees, and Assessments.
Consultant shall obtain, at its sole cost and expense, suc h licenses, permits, and
approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, whi
ch may be imposed by law and arise
from or are necessary for the
practice of Consultant’s profession
and shall indemnify,
defend, and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes penalties, or int
erest levied, assessed, or imposed against
City hereunder.
1.5 Familiarity with Work.
By executing this Agreement, Consultant
agrees
that Consultant (i) has thoroughly
investigated and considered the scope of services to be performed, (ii) has carefully co
nsidered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement.
If the services involve work upon any site, Consultant
agrees
that Consul
tant has or will
investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. If Consultant discovers any latent or unknown conditions that will materially affect the performance of the services hereunder,
then Consultant shall immediately inform the City of such fact and shall not proceed except at City’s risk until written instructions are received from the Contract Officer.
1.6 Care of Work.
Consultant shall adopt reasonable met
hods during the life of the Agreement to
furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof, to prevent losses or damages, and shall be responsible for all such damage
s to persons or property, until
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acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Prevailing Wages.
Consultant
is aware of the requirements of California Labor Code Section 1720, et
seq.
and 1770
,
et seq.
, as well as California Code of Regulations, Title 8, Section 1600, et seq
., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “Public Works” and “Maintenance” projects.
Cons
ultant
shall pay prevailing wages to its employees
as required
. Copies of
the general prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the
Agreement
, as determined by
the
Director of the State of
California Department of Industrial Relations, are on file at the City’s Public Works Department and may be obtained from the California Department of Industrial Relations website [http://www.dir.ca.gov/OPRL/DPreWageDetermination.h tm].
Consultant
shall
comply with the 8
-
hours per day/40 hours per week/overtime/working hours restrictions for all employees, pursuant to the California Labor Code.
Consultant
and all
consultants
shall keep and maintain accurate employee payroll records
for Work performed under the
Agreement. The payroll records shall be certified and submitted as required by law, including Labor Code Sections 1771.4 (if applicable) and 1776, including to the Labor Commissioner no less frequently than monthly. Consultan t shall comply fully with Labor
Code Section 1777.5 in the hiring of apprentices for work relating to the Agreement.
1.8 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations un
der this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless specified in this Agreement, neither Pa
rty shall be responsible for the service of the other.
1.9 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Ser
vices or make changes by altering, adding to, or deducting from said work. No such extra work or change may be undertaken unless a written order is first given by the Contract Officer to the Consultant, describing in detail the extra work or change and th e
reason(s) therefor and incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work or change, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Consultant.
Any increase
in compensation of up to ten percent (10%) of the Contract Sum or an amount not to exceed a total contract sum of Fifteen Thousand Dollars ($15,000), whichever is less, or any increase in the time to perform of up to one hundred eighty (180)
days, may be
approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. Payment for additional services rendered by Consultant under this Agreement requires the submission of th e actual costs
of Consultant’s performance of the extra work with the invoice(s) for the extra work claim(s), as provided in Section 2.4. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically
set forth in the Scope of
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Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not
be entitled to additional
compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors.
No claim for an adjustment in the contract amount or time for performance shall be valid unless the procedures estab
lished in this Section are followed.
1.10 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B”
and
incorporated herein by t
his reference. In the event of a conflict between the provisions of Exhibit “B”
and any other provisions of this Agreement, the provisions of Exhibit “B”
shall
govern.
ARTICLE 2.
COMPENSATION AND METHOD OF PAYMENT
2.1 Contract Sum.
Subject to any limitati
ons set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C”
and incorporated herein by this reference. The
total compensation, including
reimbursement for actual exp
enses, shall not exceed
four
hundred and
eighty
-
six
thousand
d
ollar
s
and
zero
c
ents
($
486,000
)
(the “Contract Sum”), unless additional
compensation is approved pursuant
to Section 1.9.
2.2 Method of Compensation.
The method of compensation may
include: (i) a lump sum payment upon
completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services; (iii) payment for time and materials based upon the Consultant’s rates as specified in the Schedule of Compen sation, provided that time
estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may
include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
and only if specified in the Schedule of
Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical compon
ent of the services. If Consultant is
required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
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Each month Consultant shall furnish to
City an original invoice for all work
performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all pro
visions of the Agreement.
For time and
materials compensation only, t
he invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub
-
category), travel, materials,
equipment, supplies, and sub
-
contractor co
ntracts. Sub
-
contractor charges shall also be
detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person.
City may independently review each invoice submitted by the Consultant to determine
whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payme nt
will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission.
2.5 No Waiver.
Review and payment by City to Consultant of any
invoice for work performed by
Consultant pursuant to this Agreement shall not be deemed a waiver of any defects in work performed by Consultant or of any rights or remedies provided herein or any applicable law.
ARTICLE 3.
PERFORMANCE SCHEDULE
3.1 Time
of Essence.
The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performan
ce
, within the Consultant’s professional standard of
care
.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) e
stablished in the “Schedule of Performance” attached hereto as Exhibit “D”
and
incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by
the Contract Officer but not exceeding one hundred eighty (180) days cumulatively, pursuant to Section 1.9.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement
shall be extended because of any
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delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes
, floods, epidemics, quarantine
restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall, within ten (10) days of the commencement of such delay, notify the Contr
act Officer in writing of the causes of
the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Off
icer such delay is justified. The Contract Officer shall extend the time for performance in accordance with the procedures set forth in Section
1.9. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. I
n no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier ter
minated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding
two
(
2 ) year from the date hereof, except as otherwise provided in the Schedule of Performance
(
Exhibit “D”
).
ARTICLE 4.
COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with
respect to the work specified herein and make all decisions in connection therewith:
Stephen Dopudja, P.E.
CEO
(Name)
(Title)
Jon Wells, P.E.
CFO
(Name)
(Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this A
greement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the
Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent pers onnel to
perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement.
Consultant shall
notify City of any
material
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assigned to perform the services required under this Agreement, prior to and during any such performance. In the event that City, in its sole
discretion, at any time during the term
of this Agreement, desires to reassign any staff or subcontractor of Consultant, Consultant shall, immediately upon a Reassign Notice from City of such desire of City, reassign such persons or persons.
4.2 Status of
Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this A greement or is
otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents o f City. Neither
Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care, or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such
rights.
4.3 Contract Officer.
The Contract Officer shall be the City
Manager
or other such person designated
by the City
Manager
. It shall be the Consultant’s responsibility to assure that the Contract Officer is kept informed of the
progress of the performance of the services and the
Consultant shall refer any decisions which must be made by City to the Contract Officer.
Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract
Officer. The Contract Officer shall have authority, if specified in writing by the City
Manager
, to sign all documents on behalf of the City required
hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any
of its employees shall have any control over the manner, mode, or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, superv
ision or control of Consultant’s employees, servants,
representatives, or agents, or in fixing their number, compensation, or hours of service.
Consultant shall perform all services required herein as an independent contractor of City and shall remain at
all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City
shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experi
ence, knowledge, capability, and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement.
Therefore, Consultant shall not contract with any other entity to perform in whole or in part DocuSign Envelope ID: FF06ADFC-B8B5-475A-A80E-550C68CE10AB Page
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the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether f or
the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present owner ship and/or control
of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant
or any surety of Consultant of
any liability hereunder without the express consent of City.
ARTICLE 5.
INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
The Consultant shall procure and maintain, at its sole cost and expense, in a form and con
tent satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees, and agents of City
in relation to the services
perform
ed
by
Consultant under this Agreement
:
(a)
Commercial
General Liability Insurance (Occurrence Form CG0001
or equivalent)
. A policy of
commercial
general liability insurance written on a per
occurrence basis for bodily injury, personal injury, and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then
the general aggregate limit shall be twice the
occurrence limit.
(b)
Worker’s Compensation Insurance
. A policy of worker’s
compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insur
e, and provide legal defense for both the
Consultant and the City against any loss, claim, or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying
out the work or services contemplated in this
Agreement.
(c)
Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent)
. A policy of comprehensive automobile liability
insurance written on a per occurrence for
bodily injury and property damage in an amount
not less than $1,000,000. Said policy shall include coverage for owned, non -
owned,
leased, and hired cars.
(d)
Professional Liability
. Professional liability insurance appropriate to
the Consultant’s profes
sion. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or r
elated to services performed under this Agreement
, for the duration of
the project
.
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(e)
Additional Insurance
. Policies of such other insurance, as may be
required in the Special Requirements.
(f)
Subcontractors
. Consultant shall include all subcontract
ors as
insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
5.2 General Insurance Requirements.
Wi
th regard to services performed by Consultant under this Agreement, a ll of the
above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees, and agents as additional insureds, and any insuran ce
maintained by City or its officers, employees, or agents shall apply in excess of, and not contribute with, Consultant’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its offic ers, employees, and
agents and their respective insurers. The insurance policy must specify that where the primary insured does not satisfy the self
-
insured retention, any additional insured may
satisfy the self
-
insured retention. All of said policies of
insurance shall provide that said
insurance may not be amended or cancelled by the insurer or any Party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said polici
es of insurance are cancelled, the Consultant shall,
prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Consultant has
provided the City with Certificates of Insurance or
appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copi
es of all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
City, its respective elected and appointed officer
s, directors, officials, employees,
agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by C
onsultant; or automobiles owned,
leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteer
s. Consultant’s 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.
Any deductibles or self
-
insured retentions must be declared to and approved by
City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self
-
insured retentions as respects City or its respective elected or appointed of ficers,
officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Consultant agrees that the requirement to provide insuranc e shall not be
construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant’s activities or the activities of any person or persons for which
the Consultant
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is otherwise responsible nor shall it limit the Consultant’s indemnification liabilities as provided in Section 5.3.
In the event the Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, the cont
ract between the Consultant and such
subcontractor shall require the subcontractor to maintain the same policies of insurance that the Consultant is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to C
ity.
5.3 Indemnification.
Consultant shall indemnify, defend and hold City and its directors, officers, agents, employees harmless from all damages, costs, liability claims, losses, judgments, and expenses, including reasonable attorneys
’
fees as a result
of third party claims, to the
proportionate extent arising out of the negligent acts, errors, or omissions, or reckless or willful misconduct by Consultant, its officers, agents or employees, or out of Consultant’s material breach of its obligations in pe
rforming this Agreement.
Consultant shall incorporate similar, indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance wit h these provisions shall not be a
waiver hereof
.
The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
5.4 Sufficiency of Insurer or Surety.
Insurance required by this Agreement s
hall be satisfactory only if issued by
companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Clas
s VII or better, unless such requirements are waived
by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or ser
vices to be performed under this Agreement creates an
increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager C
onsultant.
ARTICLE 6.
RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to
the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services.
Any and al
l such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours o
f City, including the right to inspect, copy, audit and make records and transcripts from DocuSign Envelope ID: FF06ADFC-B8B5-475A-A80E-550C68CE10AB Page
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such records. Such records shall be maintained for a period of 3 years following completion of the services hereunder, and the City shall have access to such records
in
the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest.
6.2 Reports.
Consultant shall
periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the c
ost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the wo
rk or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or d
ecreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies,
surveys, data,
notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and s hall be delivered to City
upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownersh ip use, reuse, or assignment of
the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole risk and without
liability to Consultant, and Consultant’s
responsibility
shall not extend to such use, reuse
or assignment. Consultant may retain copies of such documents for its own use.
Consultant shall have the right to use the concepts e
mbodied therein. All subcontractors
shall provide for assignment to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.
6.4 Con
fidentiality and Release of Information.
(a)
All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. C onsultant shall not release or
disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b)
Consultant, its officers, employees, agents or subcontractors, shall not
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the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning
the
work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
(c)
If Consultant, or any officer, employee, agent or subcontractor of
Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a res ult of
Consultant’s conduct.
(d)
Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requ est for
admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hear ing or similar
proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant.
However, this right to review any such response does not imply or mean
the right by City
to control, direct, or rewrite said response.
ARTICLE 7.
ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in
accordance with the laws of the State of California.
Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or
any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Centr al
District of California, Eastern Division.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed afte
r the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but
may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall proceed with payment on the invoices only when the default is cured. In the alternative, t he City may,
in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure
on the part of the City to give
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notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
After providing notice to the
Consultant containing all material information
,
including but not limited to the facts amounting to valid justification
under this section,
related documentation, and the dollar amount, City may
deduct from any amount payable
to Consultant (whether or not
arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City
and caused by the Consultant
, and
(ii) all amounts for
which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which
is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim . The
failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
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7.4 Waiver.
Waiver by any Party to this Agreement of
any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a wai
ver of any subsequent breach or violation of any
provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any r
ight or remedy by a non
-
defaulting Party on any default
shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any o
ther provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by
either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.6 Legal Action.
In addition to any
other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, o
r to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Liquidated Damages
Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the eve nt of a breach
of this Agreement, Consultant and its sureties shall be liable for and shall pay to City the sum of
zero dollars and zero cents
($
0.00 ) as liquidated damages for each working day
of delay in the performance of any service required hereunder,
as specified in the
Schedule of Performance (Exhibit “D”). City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages.
7.8 Termination Prior to Expiration of Term.
This Section shall govern
any termination of this Contract except as specifically provided in the following Section for termination for cause. City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Consultan
t, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Contract at any time, with
or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consu ltant
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shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered pri or to the
effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3.
In the event the
Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the
terminating Party need not
provide the non
-
terminating Party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agre
ement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services requ
ired hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set
-
off or partial payment of the amounts
owed
the City as previously stated.
ARTICLE 8.
CITY OFFICERS AND EMPLOYEES: NON
-
DISCRIMINATION
8.1 Non
-
liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in t
he event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest.
Consultant covenants that neither it, nor
any officer or principal of its firm, has or
shall
knowingly
acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreem
ent. Consultant further covenants that in the
performance of this Agreement, no person having any such interest shall knowingly
be
employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer.
Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or i ndirect,
in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly o r indirectly, interested,
in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
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Additionally, pursuant
to Rialto Municipal Code section 2.48.145, Consultant
represents that it has disclosed whether it or its officers or employees is related to any officer or employee of the City by blood or marriage within the third degree which would subject such officer
or employee to the prohibition of California Government Sections 87100 et. seq., Fair Political Practices Commission Regulation Section 18702, or Government Code Section 1090. To this end, by approving this Agreement, Consultant attests under penalty of p
erjury, personally and on behalf of Consultant, as well its officers, representatives, that it/they have no relationship, as described above, or financial interests, as such term is defined in California Government Section 87100 et. seq., Fair Political Pr
actices Commission Regulation Section 18702, or Government Code Section 1090, with any City of Rialto elected or appointed official or employee, except as specifically disclosed to the City in writing.
8.3 Covenant Against Discrimination.
Consultant covena
nts that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, gender, s
exual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment w
ithout regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration an
d Nationality Act, 8
U.S.C.A. §§
1101,
et seq
., as amended, and
in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services
covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorney’s fees, incurred by City.
ARTICLE 9.
MISCELLANEOUS PROVISIONS
9.1 Facilities and Equipment.
Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment
necessary to perform the services required by this
Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as may be reasonably necessary for Consultant’s use wh
ile consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing of City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish an
y facilities that may involve incurring any direct expense, including but not limited to computer, long distance telephone, network data, internet, or other communication charges, vehicles, and reproduction facilities.
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9.2 Payment of Taxes.
Consultant is s
olely responsible for the payment of employment taxes incurred under this Agreement and any federal and state taxes.
9.3 Notices.
All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, se
nt by pre
-
paid First Class U.S. Mail,
registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission, and shall be deemed received upon the earlier of (i) the date
of delivery to the address of the person to receive
such notice if delivered personally or by messenger or overnight courier; (ii) three (3) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given b
y facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty -
eight (48) hours by letter
mailed or delivered. Other forms of electronic transmission such as e -
mails, text
messages, instant me
ssages are not acceptable manners of notice required hereunder.
Notices or other communications shall be addressed as follows:
If to City:
City of Rialto
150 S. Palm Ave.
Rialto, CA 92376
Attn: City
Manager
Tel: (909) 820
-
2525
Fax: (909) 820
-
2527
With co
py to:
Burke, Williams & Sorensen, LLP
1770 Iowa Avenue, Suite 240
Riverside
, CA
92507
Attn:
Eric S. Vail
,
Interim
City Attorney
Tel: (
951
)
788
-
0100
Fax: (
951
)
788
-
5785
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If to Consultant
:
DOPUDJA & WELLS CONULTING, INC.
18712 Cottonwood Street
Fountain Valley, CA 92708
Tel:
()
-
Fax
: ()
-
With copy to:
Optima Law Group, APC
4275 Executive Square, Suite 200
La Jolla, CA 92037
Attn: Paul Nardulli, Esq.
Tel: (858) 964
-
4697
Either Party may change its address by notifying the
other Party of the change of
address in writing.
9.4 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of th
is Agreement or any other rule of construction which might otherwise apply.
9.5 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrumen t.
9.6 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting t his Agreement and this
Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of thi s Agreement shall be
valid unless made in writing and approved by the Consultant and by the City Council. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.7 Severability.
In
the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenfor
ceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provi
sion is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
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9.8 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such
Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the enterin g into this
Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF
, the parties hereto have executed
and entered into
this
Agreement on the date first
written
above.
CITY:
CONTRACTOR:
CITY OF RIALTO, a municipal
DOPUDJA & WELLS CONSULTING,
INC.
corporation
By:
By:
Deborah
Robertson, Mayor
Signature
ATTEST:
Stephen Dopudja
Name
By:
Barbara A. McGee, City Clerk
CEO
Title
APPROVED AS TO FORM:
By:
Burke, Williams & Sorensen, LLP
Signature
By:
Jon
Wells
Eric S. Vail
,
Interim
City Attorney
Name
CFO
Title
**Two signatures are required if a
corporation**
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EXHIBIT “A“
SCOPE OF
SERVICES
I.
Consultant will perform the following Services
outlined below. A detail
proposal with scope of work is also attached.
A.
Water Master Plan Update
B.
Wastewater Masterplan Update
C.
As
-
Needed Support
D.
Predesign
Services for the Lake Rialto Pro
ject
i. Predesign
Evaluation
ii.
Site Design Level Survey
iii.
Funding Assistance, includes Funding Strategy and Funding Application Assistance (if needed)
iv.
Base Geotechnical Engineering
v.
Project Management
II.
As part of the Services, Consultant will
prepare and deliver the following
tangible work products to the City:
A.
Water Master Plan Update Report
B.
Wastewater Master Plan Update Report
C.
Lake Rialto
Final Predesign T
M
D.
Site Design Level Survey Files
E.
Grant Funding Strategy TM
F.
Geotechnical Field Evaluatio
ns
and Report
III.
In addition to the requirements of Section 6.2, during performance of the Services, Consultant will keep the City appraised of the status of performance by delivering the following status reports:
A.
Not Applicable
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IV.
All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City.
V.
Consultant will utilize the following personnel to accomplish the Services:
A.
Stephen Dopudja,
CEO
B.
Other
D&W
personnel as needed/requested
C.
Subconsultants outlined in the proposal
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EXHIBIT “B“
SPECIAL REQUIREMENTS
(Superseding Contract
Standard Language
)
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
I.
Consultant shall perform the
required
tasks at the rates
described in the
proposal.
II.
Within the budgeted amounts for each Task, and with the approval of the Contract
Officer, funds may be shifted from one Task sub
-
budget to another
so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.9.
I
II
.
The City will compensate Consultant for the Services performed upon
submission of a valid invoice. Each invoice is to include:
A.
Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
B.
Line items for all materials and equipment properly charged to the Services.
C.
Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D.
Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services.
I
V.
The total
compensation for the Services shall not exceed $
486,000
as
provided in Section 2.1 of this Agreement.
V.
The Consultant’s billing rates for all personnel
are attached as Exhibit C
-
1. Exhibit “C
-
1”
Billing Rate Schedule
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EXHIBIT “D“
SCHEDULE OF PERFORMANCE
I.
Consultant shall perform all Services timely in accordance with the schedule to be developed by Consultant and subject to the written approval of the Contract Officer and the City Attorney’s office.
II.
Consultant shall deliver the following tangible work
products to the City by
the following dates.
A.
As outlined in the proposal
B.
C.
III.
The Contract Officer may approve extensions for performance of the
services in accordance with Section 3.2.
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