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Agreement Form 4894-5028-5594 v. 1
ON-CALL PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF RIALTO AND
TERRACON CONSULTANTS, INC.
THIS ON CALL PROFESSIONAL SERVICES AGREEMENT (herein “Agreement”) is made and entered into this 15th day of November, 2022, by and between the City of Rialto, a municipal corporation and California general law city (“City”), and Terracon Consultants, Inc., a Delaware corporation , (“Consultant”). City and Consultant are sometimes individually referred to as “Party” or collectively as “Parties”.
RECITALS
A. City has so ught, by request f or qu alifications the performance of t he services defined and described particularly in Section 1 of this Agreement.
B. F
ollowing the submission of a proposal for the performance of the services defined and described particularly in Article 1 of this Agreement, Consultant was selected by the City to be eligible to perform those services as needed and requested by the City.
C. During the Term of this Agreement, the City may initiate or continue various projects for which Consultant’s services may be used. For a given project, the City may solicit proposals from Consultant and other firms to perform services on that project, and the City may award a Task Order for the project based on availability, schedule, and cost proposal. Consultant understands and acknowledges that this Agreement provides no guarantee that Consultant will be selected to perform any volume or work for the City.
D. Pursuant to Chapter 2.48 of the Rialto Municipal Code, City has authority to enter into and execute this Agreement.
E. The Parties desire to formalize the selection of Consul tant 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 follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
Scope of Services . Con sultant agrees to perform On -Call Professional Environmental services (hereinafter, the “Scope of Services” or “Services”) as requested and authorized by the City. The Scope of Services are more particularly described in Exhibit A a ttached hereto and incorporated herein. When the City desires to utilize Consultant for the Scope of Services, the City will issue a Task Order , in a form that is On-Call Professional Services Page 2 4/7/22
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substantially similar to Exhibit B, that includes a Scope of Services to be performed and the compensation to be paid for the Services within the Task Order. Upon the issuance of a Task Order, that Task Order shall immediately be incorporated into this Agreement as part of Exhibit “A” (e.g., the first Task Order will be Exhibit “A -1”, the second Exhibit “A-2,” etc.). Each Task Order is made a part of t his Agreement by this reference and encompassed within the Scope of Services of this Agreement.
As a material inducement for City to enter into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary 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 contemplated herein. Consultant shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all Services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more professional firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Agreement between the Parties shall consist of the following: (1) this Agreement, including the Recitals; (2) the Scope of Services , including all Task Orders; (3) the City’s Request for Qualifications No. 22-050; and, (4) the Consultant’s signed, original proposal submitted to the City (“Consultant’s Proposal”), (collectively referred to as the “Contract Documents”). The Contract Documents and Accepted Proposal shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the Scope of Services , Consultant’s Proposal , and/or this Agreement, 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 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. In addition to the terms, conditions, and performance obligations for the Work set forth in this Contract, Consultant must also comply with the federal contract terms, conditions, rules, and regulations set forth in the attached Exhibit D (“Federal Contract Terms, Conditions, and Regulations”).
1.4 Licenses, Permits, Fees, and Assessments.
Consultant shall obtain, at its sole cost and expense, such 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, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the Services required by this Agreement, and shall indemnify, defend, and hold harmless City, its officers, employees On-Call Professional Services Page 3 4/7/22
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or agents of City, against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City hereunder.
1.5 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of Services to be performed, (ii) has carefully considered 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 warrants that Consultant has or will investigate the site and is or will be fully acquainted wi th 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 Cit y 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 methods during the life of the Agreement to furnish continuous protection to t he 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 damages to persons or property, until 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. It is the und erstanding of City and Consultant that the Prevailing Wage Laws may not apply to this Agreement because the Agreement does not involve any services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder. However, Consultant shall defend, indemnify, and hold City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
1.8 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under 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 Party shall be responsible for the service of the other.
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1.9 Additional Services.
City shall have the right at any time during the performance of the Services under an individual Task Order, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services 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 the reason(s) therefor and incorporating therein any adjustment in (i) the Task Order sum for the actual cost of the extra work or change, and/or (ii) the time to perform the Task Order , which said adjustments shall be reflected in an amendment to the Task Order subject to the written approval of the Parties . Any amendment to a Task Order shall be reviewed and approved by the City Manager. In accordance with Rialto Municipal Code section 2.48.180, i ncreases in compensation for a Task Order may be approved by the City Manager provided: (a) the initial Task Order amount was less than One Hundred Thousand Dollars ($100,000) and the amended Task Order sum when considering any or all amendments will not exceed One Hundred Thousand Dollars ($100,000); or (b) the Task Order was approved by the City Council and the increases in compensation taken either separately or cumulatively do not exceed One Hundred Thousand Dollars ($100,000). Any greater increases, taken either separately or cumulatively must be approved by the City Council. Payment for additional services rendered by Consultant under a given Task Order requires the submission of the 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 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 established in this Section are followed.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Contract Sum.
City and Consultant acknowledge and agree that the Services required by this Agreement will vary dependent upon the number, type, and extent of the Services the Consultant shall provide; and no guarantee of the extent or the type of Services required of Consultant under the terms of this Agreement is made by the City. The annual or total level of Services required by this Agreement is unknown, and may significantly increase or decrease from year to year. In acknowledgement of the fact that the number and type of projects requiring the Consultant’s Services has not been identified for this Agreement, City and Consultant acknowledge and agree that a specific “Maximum Contract Amount” shall be imposed on each separate project that the City may assign Consultant as provided in Section 1.9 and in this Section 2.1. Each such separate project shall be identified as a Task Order authorized by the City Manager or designee as provided in this Section 2.1. The Maximum C ontract Amount of this Agreement is undefined, and is On-Call Professional Services Page 5 4/7/22
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subject to the number and type of projects requiring the Consultant’s Services throughout the duration of the term of this Agreement, if any. Consultant’s compensation shall be limited to the Maximum Contract Amount identified on each separate, individually authorized Task Order corresponding to a project requiring the Services of the Consultant in accordance with the Schedule of Compensation set forth in the attached Exhibit C.
Subsequent approval of individual Task Orders shall be approved in accordance with the provisions of Chapter 2.48 of the Rialto Municipal Code.
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 spec ified in the Schedule of Compensation, 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 pursua nt 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 i s a critical component 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.
Unless otherwise specified by the Task Order, 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 provisions of the Agreement. The 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 contracts. 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 payment will occur within this time period. In the event any charges or expenses are disputed by On-Call Professional Services Page 6 4/7/22
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City, the original invoice shall be returned by City to Consultant for correction and resubmission.
2.5 No Waiver.
Review and payment by Cit y 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.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
The Services authorized by each Task Order shall be completed pursuant to the schedule stated in the Task Order. Should the Services not be completed pursuant to that schedule, the Contractor shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Contractor to continue performing the Services.
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 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 Contract Officer in writing of the causes of the delay. The Cont ract 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 Officer 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. In 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.
Subject to the termination provisions of this Agreement, the Term of this Agreement is for three years commencing on the date first described above. City may extend the Term of this Agreement two times for one year each time, for a total potential term of five years.
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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:
Carl Parten Contract Manager/Senior Principal
(Name) (Title)
(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 Agreement 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 changes in Consultant’s staff and subcontractors, if any, 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 Agreement 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 of 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.
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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 requir ed 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, supervision 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 experience, 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 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 for 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 ownership 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 content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which sh all cover all elected and appointed officers, employees, and agents of City:
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(a) Comprehensive General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive 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, insure, 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 profession. 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 related to Services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Consultant’s Services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of the City submit written evidence of this continuous coverage.
(e) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements.
(f) Subcontractors. Consultant shall include all subcontractors 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.
All of the above policies of insurance shall be primary i nsurance and shall name the City, its elected and appointed officers, employees, and agents as additional insureds, and any insurance 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 officers, 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 On-Call Professional Services Page 10 4/7/22
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hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies 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 copies of all required insurance policies at any time.
Any failure to comply with the reporting or other provisions of the polic ies including breaches or warranties shall not affect coverage provided to City.
City, its respective elected and appointed officers, 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 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, and their respective elected and appointed officers, officials, employees or volunteers. 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 officers, 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 Consulta nt agrees that the requirement to provide insurance 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 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 compl iance with Section 4.5 of this Agreement, the contract 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 City.
5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend, and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may b e asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations, or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any in dividual or entity for On-Call Professional Services Page 11 4/7/22
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which Consultant is legally liable (“indemnitors”), arising from Consultant’s reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant, or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents, or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents, or employees, any and all costs and expenses incurred by the City, its officers, agents, or employees in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.
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 with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional Services hereunder. The provisions of this Section do n ot apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness, or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
Notwithstanding the foregoing, to the extent that the Consultant’s Services are subject to California Civil Code Section 2782.8, the above indemnity, including the cost to defend, shall be limited to the extent required by Civil Code Section 2782.8.
5.4 Sufficiency of Insurer or Surety.
Insurance required by this Agreement shall 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 Class VII or better, unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. I f this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or Services to be performed under this Agreement creates an On-Call Professional Services Page 12 4/7/22
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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 Consultant.
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 all 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 of City, including the right to inspect, copy, audit and make records and transcripts from 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 cost 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 t he cost of the work 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 decreased 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, phot ographs, 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 shall 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 ownership 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 On-Call Professional Services Page 13 4/7/22
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liability to Consultant, and Consultant’s guarantee and warranties 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 embodied 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 Confidentiality 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. Consultant 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, without prior written authorization from the Contract Officer or unless requested by 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, caus ed by or incurred as a result 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, request 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, hearing 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.
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In the event of litigation in a U.S. District Court, venue shall li e exclusively in the Central 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 f or any work performed after 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, the 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 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.
Consultant hereby authorizes City to 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 (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.
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 waiver 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 right 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 other provision of this Agreement.
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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 r emedies 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 thi s Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifi cally 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 Consultant, except that where termination is due to the faul t of the Consultant, the period of notice may be such shorter time as may be determined by the Contr act Officer. Upon receipt of any notice of termination, Consultant shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer.
Consultant shall be entitled to compensation for all Services rendered prior 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 of termination without cause pursuant to this Section, the City need not provide the Consultant with the opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, 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 required 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 the event of any default or breach by the City or for any On-Call Professional Services Page 16 4/7/22
Agreement Form 4894-5028-5594 v. 1
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 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 Agreement or any individual Task Order subsequently awarded.
Consultant further covenants that in the performance of this Agreement, no person having any such interest shall 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 w ith the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the A greement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or 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.
Additionally, pursuant to Rialto Municipal Code section 2.48.145, Consultant represents that it has disclosed whether it or its offic ers 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 Commi ssion Regulation Section 18702, or Government Code Section 1090. To this end, by approving this Agreement, Consultant attests under penalty of perjury, 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 Practices 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 covenants 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, sexual orientation, gender identity, 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 without regard to their race, color, creed, religion, sex, sexual orientation, gender, gender i dentity, marital status, national origin, ancestry, or other protected class.
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8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and 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 while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnis hing of City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any 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.
9.2 Payment of Taxes.
Consultant is solely 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, sent by pre- paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimi le 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 by 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 messages 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
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Tel: (909) 820-2525
Fax: (909) 820-2527
With copy to: Burke, Williams & Sorensen, LLP
1770 Iowa Avenue, Suite 240
Riverside, CA 92507
Attn: Eric S. Vail, City Attorney
Tel: (951) 788-0100
Fax: (951) 788-5785
If to Consultant: Terracon Consultants, Inc.
1355 E. Cooley Drive
Colton, CA 92324
Carl Parten, Contract Manager/Senior Principal
Tel: (909) 824-7311
Fax: (909) 301-6016
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 this 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 instrument.
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 this 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 this Agreement shall be valid unless made in writing and approved by the Consultant and by the City. 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 inv alidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, On-Call Professional Services Page 19 4/7/22
Agreement Form 4894-5028-5594 v. 1
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 provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
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 entering 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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Agreement Form 4894-5028-5594 v. 1
IN WITNESS WHEREOF , the parties hereto have executed and entered into this Agreement on the date first written above.
CITY: CONSULTANT:
CITY OF RIALTO, a municipal
corporation
Terracon Consultants, Inc., a
Delaware corporation
By: By:
Marcus Fuller Name
City Manager Title
ATTEST:
By: By:
Barbara A. McGee Name
City Clerk Title
APPROVED AS TO FORM:
Burke, Williams & Sorensen, LLP
By: **Two signatures are required if a
corporation** Eric S. Vail
City Attorney
A-1
EXHIBIT “A“
SCOPE OF SERVICES
Consultant shall provide On-Call Professional Environmental Services more described herein.
Consultant shall provide first-rate professional environmental services on an as-needed basis for various City projects as assigned. Responsibilities may include, but are not limited to, the following:
1. Conduct Phase I Environmental Site Assessments (ESA).
2. Prepare full Phase I reports as needed and provide recommendations for any further actions. Conduct complete Phase II Environmental Site Investigations, including soil and groundwater investigations, and prepare reports and recommendations.
3. Conduct Phase III Remedial Operations and Monitoring including maintenance and monitoring of soil and groundwater remedial equipment.
4. Groundwater monitoring and testing.
5. Conduct research and observations of lead-based paints, asbestos containing building materials, radon potential, mold issues, oil and gas exploration activities, and methane zone determinations.
6. Conduct surveys of hazardous construction materials such as asbestos, lead paint, mercury, polychlorinated biphenyls (PCBs), and other hazardous substances including pre-demolition abatement of hazardous materials, and third- party oversight of consultant operations related to demolition/renovation of structures.
7. Evaluate proposed Work Plans, Regulatory Orders, Closure Plans and other significant documents for completeness, correctness, effectiveness, feasibility of achieving stated objectives, and potential deficiencies.
Provide recommendations regarding appropriate modifications, alternatives, and potential liabilities.
8. Conduct environmental sampling, including project management of tasks completed, Sub-Soil Sampling, Sub- Slab Soil Vapor Sampling, Arsenic Sampling, PAH Sampling and Report Preparation.
9. Evaluate and provide a magnitude of cost estimate for the remediation of sites.
10. Complete Health Risk Assessments (HRA) of the existing data for the various properties.
11. Hazardous Materials Survey and Assessment.
12. Safety Hazard Evaluations.
13. Gather historical sources, including building department records, historical aerial photographs, local street directories, fire insurance maps, USGS 7.5 Minute Topographical Maps, and other credible sources of past uses or occupancies, review as available.
14. Conduct Interviews with past and present owners, occupants, neighbors, and/or other persons who are familiar with the property in person, by telephone, or in writing regarding the history, operations, management, waste management practices, and other environmental considerations for the subject property as those persons are available and open to an interview.
15. Regulatory interviews of State and local government officials in person, by telephone, or in writing to obtain information on permits and compliance history, and information indicating recognized environmental conditions in connection with the properties.
16. Develop comprehensive management plans for characterization, re-use and disposal of contaminated soils and/or hazardous materials that are uncovered or otherwise discovered during construction activities.
17. Provide rapid project assessments and technical reviews of construction documents, including plans, identify environmental issues, and make recommendations.
18. Perform Archeological and Paleontological studies at construction projects involving excavation of soils; prepare reports of the studies, as required.
19. Any other site investigation and assessment related tasks that the City of Rialto may need to ensure compliance with applicable federal, state, and local laws and regulations.
20. Prepare Caltrans Preliminary Environmental Study (PES).
21. Prepare Initial Studies, Negative Declarations, Mitigated Negative Declarations, Categorical Exemptions/ Exclusions (CEs), Environmental Assessments (EAs), Findings of No Significant Impact (FONSI), mitigation monitoring plans, and other associated documents such as, but not limited to, early consultations, notices of intent and notice of determinations.
22. Assist the City in identifying distribution and publishing requirements necessary for compliance with NEPA/CEQA and, when requested, undertake the distribution of documents and publishing required notices.
23. Attend public meetings/hearings, as necessary to provide technical presentations and respond to public inquiries.
24. Obtain all permits required to comply with applicable federal, state, and local environmental laws and regulations.
25. Merger, acquisition & divestiture services.
26. Provide state and federal grant application assistance.
Specifically, Consultant shall provide those Services as outlined in its proposal dated March 31, 2022, included in the following pages.
RFP NO. 22-050
City of Rialto | On-Call Environmental Services 22
Understanding On-Call Environmental Services
Technical/Management Approach
To assist City of Rialto in successfully completing projects, we provide constant communication, flexibility, and a full understanding of your needs in addition to your standards and specifications.
Terracon recognizes that effective partnering, adequate resources, and technical capabilities, while vital, do not alone guarantee successful project performance. The resources must be directed and supported by effective management procedures, cost and quality controls, and a proven delivery system. Terracon brings you a well-defined program management approach and proven procedures for planning, budgeting, scheduling, communicating, and controlling successful project delivery.
The Terracon program management approach begins with a strong commitment to partnership, collaborations, communication, and coordination with all team members. A typical scenario of how this strategy would be implemented consists of the following:
■ Project Initiation and Coordination: Terracon will meet with the project team to receive the specific project requirements. A preliminary work plan including project cost estimates, schedule, allocation of staff and equipment, and formulation of budget control elements will be submitted for approval.
■ Project Level Coordination/Field Work: Under City of Rialto’s direction and based on the construction plans, Terracon’s Environmental Practice Leader will undertake detailed phase planning and execution. The Practice Leader will coordinate with the appropriately certified and qualified geologists, engineers, assessors, technicians, and staff to initiate the work and to follow it through to completion.
■ California-Certified Laboratories: Terracon partners with local Environmental Laboratory Accreditation Program (ELAP) Certified laboratories throughout California and ensures quality assurance and quality control (QA/QC) programs are maintain ed throughout the life of the project.
■ Task Analyses/Report Preparation: Our preferred method of information and report distribution is through our Client Document Website (CDW) at https://client.terracon.com.
With access, any approved member of the project team can view, download, or print inspection and testing reports as they are uploaded. If you would like access to the reports as soon as they become available, we will need your designated email address to create an account. If you would like to grant access of reports for this project to third parties of certain or all reports; please inform the project manager of the parties’ full contact information and receipt preferences (recommend CDW, but email or fax is available). Please note that special report distribution features are only available if a fully executed agreement is in place.
■ Quality Control/Quality Assurance: Our Authorized Project Reviewer (APR) program promotes quality performance – getting it right the first time, every time. Terracon’s APR program provides you with accurate, comprehensive reports and saves you time and money by using internal measures to reduce errors. Quality oversight includes the selection, vetting, approval, and ongoing evaluation of qualified Authorized Project Reviewers (APRs) who have the responsibility to oversee quality for every project. We have designated APRs for our environmental and laboratory services.
Outlined below is the approach and management plan for our environmental services that we will be providing under this contract.
RFP NO. 22-050
City of Rialto | On-Call Environmental Services 23
Attend public meetings/hearings, as necessary to provide technical presentations and respond to public inquiries.
Obtain all permits required to comply with applicable federal, state, and local environmental laws and regulations.
State and federal grant application assistance:
Terracon’s knowledgeable team combines reconstruction with environmental remedy. Terracon consults with our Brownfields assessment and redevelopment clients, providing property-specific solutions at the pace of business, not environmental regulation. Local governments wanting to capitalize on Brownfields programs as part of their redevelopment strategy can benefit from Terracon’s award-winning private and public site redevelopment experience. Innovators in the Environmental Protection Agency’s (EPA) Brownfields program since 1995, Terracon has successfully implemented projects supported by more than 275 U.S. Environmental Protection Agency (EPA) Cooperative Agreements exceeding $69 million in Brownfields grants. Our experienced staff across the nation have assisted clients in obtaining more than $50 million in Brownfields grant funds in support of community revitalization.
Our Brownfields services include:
■ Grant Writing
■ Community Outreach and Engagement
■ Property Inventory/Prioritization/
Ranking
■ Due Diligence and Site Assessment
■ Agency Plans and Reports
■ Report Preparation
■ Grant Management and Reporting
■ Phase I/II Environmental Site
Assessments
■ Remediation and Closure Services
■ Asbestos and Lead-Based Paint
Surveys
■ Mold and Indoor Air Quality
Investigations
■ Regulatory Compliance, Permitting,
and Mitigation
■ Threatened and Endangered Species
Studies
■ Cost-to-Remedy Analysis
■ Facility Condition Assessments
■ Redevelopment Planning
■ Strategic Corrective Action
■ Tax Credit Assistance
■ Natural and Cultural Resources
Hazardous Materials Evaluation and Monitoring Services
Terracon Consultants, Inc. offers proven leadership and excellence in performing hazardous materials surveys, developing abatement cost estimates, preparing abatement specifications, conducting contractor oversight, and air monitoring services for a wide variety of county clients and projects. Terracon has provided continuous improvement and innovative solutions on hundreds of public works projects, with specific emphasis on asbestos, lead, PCB’s and other regulated hazardous materials. Asbestos consulting is the most significant portion of Terracon’s regulated materials consulting practice, our professionals are experts who understand the complexities of coordination with the entire project team through all phases of work including the initial survey and design, the pre-bid phase, construction phase, and project close-out. We work collaboratively with architects, construction managers, general contractors, abatement firms, county program representatives, and others.
■ Asbestos and Naturally Occurring
Asbestos
■ Lead Based Paint
■ Polychlorinated Biphenyl’s (PCBs)
■ Mercury
■ Industrial Hygiene Services
■ Mold & Indoor Air Quality
■ Noise and Hearing Conservation
■ Environmental Site Assessments
(Phase I, II, and IIIs)
RFP NO. 22-050
City of Rialto | On-Call Environmental Services 24 ■ Underground and Aboveground ■ Storage Tank Management Terracon has completed several hundreds of Public Agency projects with specific experience with Counties and their supporting agencies. We specialize in Capital Improvement and Operations / Maintenance projects with specific emphasis on asbestos, lead, PCBs, mold, universal waste, pigeon/rodent droppings, and other regulated hazardous materials.
As a construction-oriented professional services firm, Terracon has the proven ability to provide the hazardous materials services outlined in the RFQ as well as meet project deadlines as we have done for more than 35 years. As public works experts, we have the experience to work collaboratively with capital project teams, county agencies, architects, maintenance personnel, facility engineers, bond management teams, administrators, contractors, regulators, and state agencies to complete projects. We achieve this by utilizing our cross-trained staff and making committed personnel and resources available, including working during non-business hours, as needed.
Project Approach
Terracon will thoroughly review each assigned task/project and will assign an experienced Project Manager and certified staff (e.g. Certified Industrial Hygienists, California Certified Asbestos and Lead Professionals, etc.) that are best suited to provide services required by the County. Terracon is familiar with the structure of County agencies and stakeholders, as we have currently managed similar contracts with Alameda County and the City and County of San Francisco.
The Project Manager will coordinate all appropriate staffing and equipment needed to perform the required services. The Project Manager will work with County representatives on developing the most effective and efficient lines of communication for our project teams and will oversee and manage all phases of the project approach outlined below. Terracon will rely on the six (6) Project Managers in the Emeryville office to manage specific project work. Additionally, we have in-house scheduling software that is stored on a cloud-based system to be accessible 24/7 by all project managers for maintaining real-time staffing needs for all our projects.
Typical deliverables for hazardous materials projects include:
■ Survey Reports (hazardous materials and industrial hygiene surveys) ■ Technical Specifications for Hazardous Materials Removal ■ Work Plans for Hazardous Materials Removal or Remediation Associated with Water Intrusion Events
■ Budgetary Hazardous Materials Abatement Cost Estimates ■ Operations and Maintenance (O&M) Plans
■ Abatement Monitoring Closeout Reports
Project Management
The responsibilities of the Project Manager include attendance at necessary progress meetings and provide direction to the field personnel. The general scope of services provided by the Project Manager include, but are not limited to, the following:
■ Overall management of on‐site field personnel concerning task/project scope ■ Review, evaluation, and communication of all project data and findings to the County and project team
■ Attend progress meetings, as necessary
■ Respond to RFI’s as necessary
RFP NO. 22-050
City of Rialto | On-Call Environmental Services 25 ■ Supervise production of final closeout documents
■ Respond to any client requests and/or regulatory issues that may arise
Terracon will conduct each project utilizing the following four-phased methodology outlined below providing continuous improvement and innovative solutions.
Consultation Phase
Our process commences with gaining a thorough understanding of our client’s needs, goals, objectives, and initial project parameters. With this understanding, Terracon will research and assess current conditions, needs, and work practices, as applicable, by reviewing and gathering existing data relative to the project. For example, this may include interviewing key project team members, obtaining existing hazardous materials reports, reviewing architectural drawings, and/or visually inspecting the project site to evaluate the best approach for meeting project objectives in a timely and cost-efficient manner. Based upon the initial consultation Terracon’s technical team will develop a proposed plan that accurately and thoroughly defines the scope of work and planned approach to ensure each project is addressed both individually and as part of the County’s overall program.
Investigative Phase
In the investigative phase, Terracon will
conduct a comprehensive investigation and
evaluation of existing conditions relative to
the project. Upon approval of our proposed
Work Plan, Terracon will meet with the
County’s project manager and team to
outline schedules, establish team roles, and
clarify open issues and expectations.
Generally, as part of our investigative
phase, Terracon’s certified and trained
personnel will conduct a site visit and
compare any existing data to current site
conditions. For example, a hazardous
materials project would include a visual
survey and bulk sampling of suspect materials affected by planned renovations. Upon the completion of our investigation phase, Terracon will compile, interpret, and analyze the data collected. Project personnel will review all applicable regulations, codes, and policies to accurately identify requirements for the projects, specific to the services to be provided. We will prepare a written report with conditions and recommendations for engineering, administrative controls, personal protective equipment, training, ongoing monitoring, or other potential remedies, as applicable to the overall project objectives. The report will also include sample location diagrams, laboratory reports, chain of custody documentation, photographs, and personnel professional certifications.
RFP NO. 22-050
City of Rialto | On-Call Environmental Services 26
Implementation Phase
Terracon’s project team will work closely with the County’s designated personnel to discuss the feasibility and implementation of recommendations made in our investigation report. We use the information and analytical data obtained during the investigative phase to implement recommendations, as appropriate and approved by the County, for the specific services provided.
Depending on the project requirements, Terracon will prepare a work plan or technical specifications and drawings for hazardous materials abatement that can be included in the Construction Documents for the project.
Upon authorization to proceed, we mobilize all personnel, testing equipment, and other necessary instruments to provide contractor oversight and air monitoring services during the hazardous materials abatement work. This work is closely coordinated with laboratories for required analyses, based on the scope of work.
Our project managers thoroughly review the scope of work with our project field personnel which is part of our required pre‐task planning. This planning also covers all required safety practices and personal protective equipment. Our team then performs the required services and provides regular communication to the Project Manager who provides updates and communication to designated County personnel. Terracon’s operating procedures provide direction to staff and require accurate documentation of field services.
Project Close‐Out Phase
Following the performance of the required
services, Terracon’s Project Manager will prepare
a draft written report. As part of Terracon’s
Quality Control/Quality Assurance (QA/QC)
program, we must follow a two‐step review
process to produce reports and designs. The
quality program assigns the immediate
responsibility of quality control to the Project
Manager with oversight from senior management.
The work product is reviewed by a senior
authorized reviewer in draft form before the
submission of a final report to the client. All
authorized reviewers have completed rigorous
training and must meet certain guidelines as far
as education and years of experience. We will
then issue our draft report to the County for review and comment, followed by a final report.
Terracon’s Project Manager will consult with the County to ensure the client’s satisfaction and provide any additional documentation required for actions taken in the previous phases.
RFP NO. 22-050
City of Rialto | On-Call Environmental Services 27 Regulatory Agency Interaction
Cal‐OSHA, Bay Area Air Quality Management District (BAAQMD), Department of Toxic Substances Control (DTSC), California Department of Public Health (CDPH), and the United States Environmental Protection Agency (USEPA) are the primary regulatory agencies that have jurisdiction over projects involving the removal of asbestos‐containing materials, lead‐containing paint, PCBs and universal wastes. Additionally, various cities in Solano County comply with the Bay Area Stormwater Management Agencies Association (BASMAA) guidance for managing PCB- containing building materials during the demolition of structures. The regulations include requirements ranging from sampling protocols, project notifications to worker health and safety issues through waste disposal. Terracon has extensive experience designing and managing hazardous materials abatement projects per these regulatory agencies’ requirements. Terracon frequently interacts with regulatory agencies for a variety of public and private clients and will assist the County with any such required interactions to ensure regulatory compliance.
Terracon also interacts with DTSC and the applicable Regional Water Quality Control Board when managing soils and/or groundwater contamination typically associated with industrial waste, above below ground storage tanks, and historical pesticide use.
Budget Methodology/Cost Control
Our team’s method of maintaining the project’s budget and controlling costs begins with meeting with City of Rialto before the start of a project to determine the project needs. During this initial meeting, we will identify the priorities and project deadlines, review any existing reports, data, plans, and specifications, and outline the project in Terracon’s financial management system.
Terracon will coordinate with you to prepare the Task Order Scope of Work (SOW) to establish the Task Order budget, determine the schedule, and allocate human and technological resources.
Our financial management system provides us the framework to accumulate project cost and schedule data, enabling close monitoring of project performance milestones, and allowing us to effectively manage costs and implement any necessary corrective actions.
With this capability, our entire team will provide you with up-to-date information needed to manage and track the execution of each project Task Order under this contract including the overall contract budget.
City of Rialto Benefits:
■ Automatically receive weekly summaries of the project costs. Reports can also be generated on-demand at any time.
■ View staff utilization reports for short- and long-term project assignments. This will give a clear view of future project costs.
■ Compare each project’s Task Order SOW against the associated budget and completion goals each week. These reviews will allow us to identify areas that are meeting expectations and areas that may require adjustments to meet the project goals on time. ■ Provide regular and ongoing review of our SOW status, project requirements, and schedule, with respect to the budget.
Terracon understands that data collected and documented for the field must be accurate, in compliance with City of Rialto’s procedures, and be communicated in real-time. We achieve this through the following approach:
RFP NO. 22-050
City of Rialto | On-Call Environmental Services 28 ■ Internal project kick-off meetings before mobilization to the field. Participants include the Quality Reviewer, Project Manager, task leader, and field personnel (as appropriate based on SOW). The project kick-off meeting will consist of a thorough review of the SOW to be conducted, contact information (internal and external), budget, schedule, and reporting requirements.
■ Field reports will be submitted to our Project Manager/Project Engineer daily The field reports include the activities accomplished that day, results and/or observations that fell outside of project requirements, and who was notified.
Safety
Safety is one of Terracon’s core values and our
commitment to an Incident and Injury-Free™ (IIF™)
philosophy is one of the pillars of our culture.
Successful execution and delivery include the need to
work safely and keep our employees and the public
safe every day. We have built health and safety into
every aspect of our business and our culture is
continued further in our everyday work culture, with
all meetings beginning with an IIF™ moment and
safety discussion. Terracon will work with City of
Rialto and every project team to understand the
safety rules and requirements for every task
performed and will work to get every person home
safe, every day.
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EXHIBIT B
MODEL TASK ORDER
TASK ORDER NO. __
CITY OF RIALTO
AND
[ ]
SECTION 1 – PURPOSE
The purpose of this Task Order is to authorize and direct [ ADD CONSULTANT NAME] (“Consultant”) to perform with the Scope of Work specified in Section 2 below, in accordance with the provisions of the On -Call Services Agreement between the City of Rialto (“CITY”) Consultant dated [ADD DATE] (“Agreement”). This Task Order shall be incorporated into Exhibit A of the Agreement.
SECTION 2 – SCOPE OF WORK
The services authorized by this Task Order are presented in Attachment “A” – Scope of Services, which is attached hereto and incorporated by this reference.
SECTION 3 – COMPENSATION AND PAYMENT
Compensation shall be paid as provided in the Agreement. The total compensation for Scope of Services as set forth in Section 2 shall be as set forth in Attachment “B” – Compensation, which is attached hereto and incorporated by this reference. Total compensation for all services provided under this Task Order shall not exceed [ADD MAXIMUM TASK ORDER AMOUNT].
SECTION 4 – TIME OF PERFORMANCE
The services described in Section 2 of this Task Order shall be completed in accordance with the schedule set forth in Attachment “C” – Schedule of Completion, which is attached hereto and incorporated by this reference.
SECTION 5 – ITEMS AND CONDITIONS
All terms and conditions contained in the Agreement are incorporated by reference and remain in full force and effect.
Approved this ______ day of ________________ 202_.
[SIGNATURES ON NEXT PAGE]
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CITY OF RIALTO
By: Date:
Marcus Fuller
City Manager
TERRACON CONSULTANTS, INC.
By: Date:
Name
Title
By: Date:
Name
Title
ATTEST:
By:
Barbara A. McGee
City Clerk
APPROVED AS TO FORM
By:
Eric S. Vail
City Attorney
B-3
ATTACHMENT “A”
SCOPE OF SERVICES
B-4
ATTACHMENT “B”
COMPENSATION
B-5
ATTACHMENT “C”
SCHEDULE OF COMPLETION
C-1
EXHIBIT “C”
SCHEDULE OF COMPENSATION
Title
Senior Principal $310.00 /hour
Principal $290.00 /hour
Senior Consultant $275.00 /hour
Senior Project Manager $225.00 /hour
Senior Engineer/Geologist $215.00 /hour
Project Engineer/Geologist $175.00 /hour
Project Manager $165.00 /hour
Senior Staff Engineer/Geologist $155.00 /hour
Senior Staff Industrial Hygienist $130.00 /hour
Staff Engineer/Geologist $135.00 /hour
Staff Industrial Hygienist $125.00 /hour
Field Engineer/Geologist $125.00 /hour
Field Industrial Hygienist $115.00 /hour
Administration $85.00 /hour
Logistics
Vehicle Charge $45.00 /day
Photo Ionization Device (PID) $150.00 /day
Miscellaneous Charges (equipment, materials, etc.)
Drilling (Typical)
Direct Push only, 8‐hr day $2,850.00 /day
Geophysical Survey (utility clearance) $1,200.00 /each
2022
Schedule of Services and Fees
Environmental Services ‐ Southern California
COST + 15%
Unit Price
Unit Price
Unit Price
1 of 2
2022
Schedule of Services and Fees
Environmental Services ‐ Southern California
Due Diligence Sampling
BTEX & MTBE | EPA 8021B $65.00 /test
Organophosphorus Pesticides | EPA 8141 $155.00 /test
Percent Moisture Content | EPA 160.3 $11.00 /test
Polychlorinated Biphenyls (PCBs) | EPA 8082 $65.00 /test Polynuclear Aromatic Hydrocarbons | EPA 8270C $100.00 /test Title 22/CAM17 Metals | EPA 6010/200.7 $110.00 /test
Total Petroleum Hydrocarbons – Carbon Chain $50.00 /test Volatile Organic Compounds (VOCs) | EPA 8260B $75.00 /test Volatile Organic Compounds | TO‐15 SIM $155.00 /test
Summa Canister Rental Fee $30.00 /each
Manifold/Regulator Rental Fee $40.00 /each
IH and Asbestos Sampling
Asbestos PLM $10.00 /test
Asbestos 1,000 Point Count (72hr) $80.00 /test
Asbestos PCM (24hr) $20.00 /test
Asbestos TEM bulk $35.00 /test
Lead Paint Chips $15.00 /test
Lead Bulk $45.00 /test
Lead Bulk TCLP $120.00 /test
Mold Spore Trap (72hr) $60.00 /test
Mold Tape Lift/Swab (72hr) $40.00 /test
Silica + Dust $110.00 /test
VOCs (TO‐15) $320.00 /test
Asbestos
Lead
Mold
IH
Supplies
Unit Price
Unit Price
2 of 2
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EXHIBIT D
FEDERAL CONTRACT TERMS, CONDITIONS, AND REGULATIONS
As used in this Exhibit F, this Agreement may be referred to as the “contract,” and Consultant may be referred to as “contractor.” In performing its Work under the Contract, Contractor must conform to all applicable federal, state, and local codes, laws, ordinances, rules and regulations, which will have full force and effect as though printed in full in the Contract. In addition to the terms, conditions, performance obligations, and other requirements set forth in the Contract, Contractor must comply wit h the following federal contract terms, conditions, and regulations, which are incorporated by reference in the Contract:
1. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60–1.3 must include the equal opportunity clause provided under 41 CFR 60–1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964– 1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”
41 CFR 60–1.4(b) provides:
The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction Work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant f or employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action will include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
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(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without re gard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision will not apply to instances in which an employee who has access to the compensation information of other employees or appl icants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of Workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or Workers' representatives of the contractor's commitments under this section, and mus t post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to hi s books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscriminat ion clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
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(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase ord er unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction Work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in Work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administ ering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Ca ncel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
D-4
2. Davis–Bacon Act, as amended (40 U.S.C. 3141– 3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non– Federal entities must include a provision for compliance with the Davis –Bacon Act (40 U.S.C. 3141–3144, and 3146–3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non–Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor i n each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non –Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti –Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public Work, to give up any part of t he compensation to which he or she is otherwise entitled. The non –Federal entity must report all suspected or reported violations to the Federal awarding agency.
3. Contract Work Hours and Safety Standards Act (40 U.S.C. 3701– 3708). Where applicable, all contracts awarded by the non–Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard Work week of 40 hours. Work in excess of the standard Work week is permissible provided that the Worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours Worked in excess of 40 hours in the Work week. The requirements of 40 U.S.C. 3704 are applicable to construction Work and provide that no laborer or mechanic must be required to Work in surroundings or under Working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
4. Rights to Inventions Made Under a Contract or Agreement . If the Federal award meets the definition of “funding agreement” under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research Work under that “funding agreement,” the recipient or subrecipient must comply with the requir ements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms D-5
Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
5. Clean Air Act (42 U.S. C. 7401–7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 –1387), as amended . Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non –Federal award to agree to comply with all applicable sta ndards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401–7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251– 1387). Violations must be reported to the Federal awarding agency and the Regional Office of th e Environmental Protection Agency (EPA).
6. Debarment and Suspension (Executive Orders 12549 and 12689) . A contract award (see 2 CFR 180.220) must not be made to parties listed on the government - wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
7. Byrd Anti–Lobbying Amendment (31 U.S.C. 1352) . Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non– Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non–Federal award.
8. 2 CFR § 200.322 Procurement of Recovered Materials. .A non –Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,0 00 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procureme nt of recovered materials identified in the EPA guidelines.
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9. Certification for Contracts, Grants, Loans, and Cooperative Agreements . The parties to this Contract agree to comply with the provisions of 43 CFR 18, New Restrictions on Lobbying, including the following certification requirements:
In accordance with 43 C.F.R. § Part. 18, Appendix A, each of the parties to this Contract certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the parties, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative 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 Federal contract, grant, loan, or cooperative agreement, the parties must complete and submit Standard Form–LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The parties must require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients must certify and disclose accordingly.
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 section 1352, title 31, U.S. Code. Any person who fails to file the required certification must be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
10. Executive Order 13513 of October 1, 2009, Federal Leadership On Reducing Text Messaging While Driving . Text Messaging While Driving by Government Contractors, Subcontractors, and Recipients and Subrecipients. Each Federal agency, in procurement contracts, grants, and cooperative agreements, and other grants to the extent authorized by applicable statutory authority, entered into after the date of this order, must encourage contractors, subcontractors, and recipients and subrecipients to adopt and enforce policies that ban text messa ging while driving company-owned or -rented vehicles or GOV, or while driving POV when on official Government business or when performing any Work for or on behalf of the Government. Agencies should also encourage Federal contractors, subcontractors, D-7
and grant recipients and subrecipients as described in this section to conduct initiatives of the type described in section 3(a) of this order.
11. Drug-Free Workplace (2 CFR §182 and §1401) . The Department of the Interior regulations at 2 CFR 1401—Government -wide Requirements for Drug- Free Workplace (Financial Assistance), which adopt the portion of the Drug- Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended) are hereby incorporated by reference and made a part of this Contract. By entering into this C ontract, the Contractor agrees to comply with 2 CFR 182.
12. Copeland Anti-Kickback Act (18 U.S.C. 874). Contractor agrees to comply with the Copeland Anti-Kickback Act as supplemented by Department of Labor regulations (29 CFR part 5).