Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 1 of 16
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SAN LEANDRO AND
BKF ENGINEERS
FOR
SHORELINE PARK AT THE MARINA
THIS AGREEMENT for consulting services is made by and between the City of San Leandro (“City”) and BKF ENGINEERS (“Consultant”) (together sometimes referred to as the “Parties”) as of _________________, 2021 (the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on December 31, 2022, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Subsection 1.2 above and to satisfy Consultant’s obligations hereunder.
1.5 Public Works Requirements. Because the services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the services constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Consultant is required to comply with the provisions of the California Labor Code applicable to public works, to the extent set forth in Exhibit E.
1.6 City of San Leandro Living Wage Rates. This contract may be covered by the City of San Leandro Living Wage Ordinance (LWO). Consultant’s attention is directed to the San DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E 21 April 26,
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Leandro Municipal Code, Title 1, Chapter 6, Article 6. Consultant must submit completed self-certification form and comply with the LWO if covered.
1.7 Public Works Contractor Registration. Consultant agrees, in accordance with Section 1771.1 of the California Labor Code, that Consultant or any subconsultant shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in Chapter 1 of Part 7 of Division 2 of the California Labor Code, unless currently registered and qualified to perform public work pursuant to California Labor Code section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $597,190, notwithstanding any contrary indications that may be contained in Consultant’s proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant’s proposal, regarding the amount of compensation, the Agreement shall prevail.
City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the Parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; The beginning and ending dates of the billing period; DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 3 of 16
A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
At City’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
The Consultant’s signature;
Consultant shall give separate notice to the City when the total number of hours worked by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours within a 12-month period under this Agreement and any other agreement between Consultant and City. Such notice shall include an estimate of the time necessary to complete work described in Exhibit A and the estimate of time necessary to complete work under any other agreement between Consultant and City, if applicable.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within 60 days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B.
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2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B. Expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work.
Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid or proposal. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence to City that such insurance is in effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers’ Compensation.
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4.1.1 General Requirements. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Consultant may rely on a self-insurance program to meet these requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Consultant, its employees, agents, and subcontractors.
4.1.2 Submittal Requirements. To comply with Subsection 4.1, Consultant shall submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section; and
b. Waiver of Subrogation Endorsement as required by the section.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General Requirements. Consultant, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than $2,000,000/occurrence, $4,000,000/aggregate and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and nonowned automobiles.
4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 6 of 16
Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage.
4.2.3 Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. City, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant.
c. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss.
Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation.
d. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
4.2.4 Submittal Requirements. To comply with Subsection 4.2, Consultant shall submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section; b. Additional Insured Endorsement as required by the section; c. Waiver of Subrogation Endorsement as required by the section; and d. Primary Insurance Endorsement as required by the section.
4.3 Professional Liability Insurance.
4.3.1 General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim.
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4.3.2 Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant shall purchase an extended period coverage for a minimum of 5 years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement.
4.3.3 Not Used.
4.3.4 Submittal Requirements. To comply with Subsection 4.3, Consultant shall submit the Certificate of Liability Insurance in the amounts specified in the section.
4.4 Cyber Liability Insurance.
Not Used
4.5 All Policies Requirements.
4.5.1 Acceptability of Insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII.
4.5.2 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all Certificates of Liability Insurance delivered to Consultant by the insurer, including complete copies of all endorsements attached to the policies. All copies of Certificates of Liability Insurance and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time.
4.5.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 8 of 16
before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4.5.4 Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
4.5.5 Endorsement Requirements. Each insurance policy required by Section 4 shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City.
4.5.6 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.
4.6 Submittal of Proof of Insurance Coverage. All certificates of insurance and original endorsements effecting coverage required in this Section 4 must be electronically submitted through the City’s online insurance document management program, PINS Advantage. Contractor shall comply with all requirements provided by City related to the PINS Advantage program.
4.7 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. Refer to the attached Exhibit C, which is incorporated herein and made a part of this Agreement.
Section 6. STATUS OF CONSULTANT.
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6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
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7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon 45 days’ written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 11 of 16
approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but are not limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. For all reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form (“Instruments of Service”), that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder, Consultant shall grant to City a nonexclusive license to use the Consultant’s Instruments of Service solely and exclusively for purposes of constructing, using, maintaining, altering and adding to the Project. The license granted under this section permits City to authorize its separate consultants and contractors to reproduce applicable portions of the Instruments of Service solely and exclusively for use in performing services or construction for the Project. Consultant hereby agrees to deliver the Instruments of Service to the City upon termination of the Agreement and payment by City of all undisputed fees and costs. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties.
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9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement.
Section 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 13 of 16
Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous 12 months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of California Government Code Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California.
At City’s sole discretion, Consultant may be required to file with the City a Form 700 to identify and document Consultant’s economic interests, as defined and regulated by the California Fair Political Practices Commission. If Consultant is required to file a Form 700, Consultant is hereby advised to contact the San Leandro City Clerk for the Form 700 and directions on how to prepare it.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Nick Thom ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.
10.10 Notices.
Any written notice to Consultant shall be sent to:
Patrick Chan, PE, Vice-President
BKF Engineers
1730 N. First Street, Suite 600
San Jose, CA 95112
408.467.9188
[email protected]
Any written notice to City shall be sent to:
Nick Thom, City Engineer
City of San Leandro
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 14 of 16
835 East 14th Street
San Leandro, CA 94577
510-577-3431
[email protected]
With a copy to:
City of San Leandro
Department of Finance
c/o Purchasing Agent
835 East 14th Street
San Leandro, CA 94577
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example.
_________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, C, D, and E represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
Exhibit A Scope of Services
Exhibit B Compensation Schedule & Reimbursable Expenses Exhibit C Indemnification
Exhibit D COVID-19 Compliance Requirements
Exhibit E California Labor Code Section 1720 Information
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($1,000,000.00) or more, by Consultant’s signature below Consultant certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of the DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 15 of 16
California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5 of the California Public Contract Code, as applicable.
SIGNATURES ON FOLLOWING PAGE
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Page 16 of 16
The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party.
CITY OF SAN LEANDRO BKF ENGINEERS
Frances Robustelli, Interim City Manager Patrick Chan, PE, Vice-President Attest:
Consultant’s DIR Registration Number
(if applicable)
Leticia I. Miguel, City Clerk
Budget Approved:
Approved as to Fiscal Authority:
Susan Hsieh, Finance Director
210-57-203-5120
Account Number
Approved as to Form:
Richard D. Pio Roda, City Attorney
Per Section 10.7: Form 700 Required
Keith Cooke, Director Engineering and Transportation Department DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E 3/17/2021
X
17-Mar-2021
No
X
x
Fmr
Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit A – Page 1 of 4
EXHIBIT A
SCOPE OF SERVICES
Project Description:
The City’s Shoreline Development plan has a project to demolish existing improvements at the San Leandro Marina and construct a new park along the existing jetties and at some locations into the water of the SF Bay. An inventory of items at the Marina that may be demolished is contained in a report by GHD dated January 2018 and concept plans for the new park are illustrated in a presentation created by Gates and Associates in October 2017. The project is adjacent to land that contains the Marina Inn and Horatio’s restaurant, both of which are to remain. The project is also adjacent to land that is proposed for development as described in an agreement between the City and Cal Coast Companies dated July 22, 2020.
Refer to the site exhibit, titled “Limit of Work Map” attached to this agreement for the project limit, which includes areas that are hatched.
The improvements generally include landscaping, paving, two public restrooms, and water access ramps.
Except where improvements provide access to the water or transition to existing work to remain, new improvements are to be built above the central bound sea level rise, it is envisioned that this will be accomplished by raising the grade of the jetties about three feet. Any additional jetty height will require protection from erosion. The restrooms are envisioned to be pre-fabricated off site, foundations and utility connections will be built on site. The project shall develop concepts for and provide room for adaptations necessary to protect these improvements against the upper bound sea level rise. Improvements required to protect the area from the upper bound sea level rise are not included in the project, they will be designed and installed as part of a future phase of the project. The bridge over the marina entrance is anticipated to be constructed in a future phase, the first phase will thus locate the ‘bay trail’ along the east edge of the existing marina basin.
The construction estimate for the project, including demolition, jetty stabilization, soil import, and park improvements is $34M; however, City has only identified $22M in funding for this work. A cost estimate and narrative will be issued for value engineering options to reduce the cost of construction and / or phasing of park improvements will be necessary unless additional funding is identified. It is anticipated that the Project will be separated out into phases to meet the construction estimate. This estimate does not include soft costs or the owner’s contingency.
Scope of Work:
This contract is for 30% design of the project as described below.
Task 1: Project coordination and management
• Correspond with City as required to clarify work and get direction. • Deliver direction to and coordinate work of the design team. • Ensure the estimated cost of the design is within the construction estimate.
Deliverable: Meeting minutes
Schedule: As needed/ongoing
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit A – Page 2 of 4 Task 2: Data Collection
• Review existing soils reports, utility information, and topographic surveys. • Prepare updates to this information as required for the preparation of construction documents.
Prepare base sheets or backgrounds showing utility and topo information to be used when preparing construction documents.
• Obtain and review plans for adjacent development when they are available.
Deliverable: Soils data (PDF); Topo and utility information on base sheets (Autocad compatible files) Task 3: Update Existing Plans
• Meet with City to review plans created to date and comments received to date. • Revise / develop plans that address staff input and public comments received in 2017. • Develop an estimate for the construction cost of the work. • Review plans with City.
Deliverable: Updated plans (PDF & Autocad files); Engineers cost estimate (Excel); Schedule (Microsoft Project or equivalent file)
Task 4: Public Meetings
• Prepare presentation materials for public meetings.
• Highlight how plans respond to previous public input, include a list of requests that were not incorporated.
• Review materials with City, incorporate comments.
• Attend and provide technical support at two identical public meetings. Meetings may be scheduled on evenings and weekends. Meeting will be facilitated by City. Meetings may be in person or via video conferencing software.
• Compile notes on input received at public meetings.
• Meet with City to discuss input.
• Add list of new public input to presentation material • Attend and provide technical support at the City’s Recreation and Park Commission. Meeting may be in person or via video conferencing software.
• Compile notes on input received at commission meeting.
Deliverable: Presentation (Power Point); Colored site plans, photo simulations, presentation boards, electronic file (if meetings are in person). Revised presentation for Commission (Power Point) Task 5: Develop 30% Plans, Specifications, and Estimate (PS&E) • Evaluate protection of the outboard and inboard jetty surfaces independently, propose treatment for inboard surfaces if armor isn’t required.
• Evaluate extent and cost of any needed jetty stabilization. • Develop plans such that they show extent and character of improvements as well as conceptual solutions for unusual conditions or features.
• Include plans showing limits of demolition, pedestrian circulation, lighting layout, Bay Trail sections, programing of the spaces, and elements or structures to create the spaces. • Include a palette of site materials, wall types, site furniture, furnishings, lighting fixtures, and plants.
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit A – Page 3 of 4 • Prepare a list of technical specification sections required to construct the work. • Prepare an itemized engineers cost estimate.
• Submit check set of PS&E for review.
• Meet with City to review check set.
• Incorporate comments into final set of 30% PS&E.
Deliverable: Check set Plans (PDF); Final set plans (PDF and Autocad compatible files); Specifications (PDF); Estimate (Excel compatible files); Schedule (Microsoft Project file) Task 6: Design Approval and Refinement
• Prepare documents for submittal to BCDC staff and BCDC design review board. • Submit package to BCDC staff for review in advance of BCDC design review board. • Meet with BCDC staff to review design and receive comments. • Prepare presentation materials for presentation to City Council. • Attend and provide technical support at City Council (work session) meeting. Meeting may be in person or via video conferencing software.
• Compile notes on input received at council meeting.
• Meet with City to discuss input received from BCDC and City Council. • Refine design as needed to incorporate input.
• Submit package to BCDC staff for second review.
• Submit package and present project to BCDC design review board. • Compile notes on input received from BCDC design review board. • Meet with City to review input received.
• Update BCDC plans to address input for final (3rd) submittal. • Support the City in initiating the Joint Aquatic Resource Permit Application (JARPA) process.
Deliverable: BCDC packages (PDF); Council work session presentation (Power Point); Plans (PDF and Autocad compatible files); Specifications (PDF), Estimate (Excel compatible files) Schedule:
Exclusions: Permit fees and review fees are excluded from this scope of work. City shall pay the cost of these items.
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit A – Page 4 of 4 Optional Services
1. Wetland Delineation: A wetland delineation will be conducted to identify the extent of existing jurisdictional waters for the public parcels on the site. The delineation will be prepared using US Army Corps of Engineers (Corps) methodology, with a total of up to 10 data sample points taken as necessary to confirm any wetland features and extent of regulated waters. The estimated high water mark, top of bank, and boundary between potential wetlands and uplands will be plotted using rational methodology, and mapped to show jurisdictional features. This task includes attendance at a single field verification meeting with a Corps representative, and minor revisions to the original delineations. If extensive revisions or further detailed analysis is requested by the Corps, this scope and cost would have to be expanded. The verified wetland delineation would provide the City with a clear understanding of the limits of jurisdictional waters at the site.
2. 3D renderings: Meet with City staff to review locations and views for up to six (6) 3D rendering views at the following locations: elbow, promenade, bridge node, south basin/boat launch, hotel node and apartment node. Develop 3D Sketchup file which includes landscape features of specific development area view which may include play structures, shade elements, walls, sidewalks, planting areas, site furniture, railings, and gardens. It is assumed that all architectural background information and modeling of proposed architecture will be provided by the Prime Developer’s consultant team, and is not within the scope of this rendering service.
3. Kayak Launch Dock: The consultant team will provide analysis and conceptual design, up to 30% design level, of one kayak launch dock that would face the interior basin The analysis would include addressing accessibility, materials for walking surface, slope stabilization and fill associated with the launch ramp.
4. Conceptual Bridge Abutment Design: The consultant team will provide conceptual design of the future bridge abutments for space planning purposes. The future bridge will be shown on the BCDC plan review set if this feature is required to obtain design approval.
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit B – Page 1 of 4
EXHIBIT B
COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
January 1, 2021 – December 31, 2021 Hourly Rates
BKF Engineering Rates
PROJECT MANAGEMENT
Principal/Vice President $251.00
Senior Associate/Vice President $225.00
Associate $219.00
Senior Project Manager | Senior Technical Manager $218.00 Project Manager | Technical Manager $213.00
Engineering Manager | Surveying Manager | Planning Manager $197.00
TECHNICAL STAFF
Senior Project Engineer | Senior Project Surveyor | Senior Project Planner $183.00 Project Engineer | Project Surveyor | Project Planner $160.00 Design Engineer | Staff Surveyor | Staff Planner $140.00 BIM Specialist I, II, III $140.00 - $160.00 - $183.00
Technician I, II, III, IV $133.00 - $142.00 - $155.00 - $167.00 Drafter I, II, III, IV $104.00 - $114.00 - $123.00 - $138.00
FIELD SURVEYING
Survey Party Chief $182.00
Instrumentman $157.00
Survey Chainman $117.00
Utility Locator I, II, III, IV $95.00 - $135.00 - $16100 - $184.00 Apprentice I, II, III, IV $72.00 - $97.00 - $107.00 - $113.00
CONSTRUCTION ADMINISTRATION
Senior Consultant $239.00
Senior Construction Administrator $207.00
Resident Engineer $154.00
Field Engineer I, II, III $140.00 - $160.00 - $183.00
ASSISTANTS
Project Assistant $88.00
Engineering Assistant | Surveying Assistant | Planning Assistant $86.00 Clerical | Administrative Assistant $74.00
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit B – Page 2 of 4 Gates and Associates Rates
Partner $190.00-$220.00
Principal $160.00 - $190.00
Associate Principal $140.00 - $160.00
Senior Associate $130.00 - $140.00
Job Captain $120.00 - $130.00
Sr. Irrigation Designer $145.00 - $165.00
Irrigation Design Technician $95.00-$110.00
Sr. Visual Communications Designer $130.00 - $150.00
Marketing Coordinator $95.00-$140.00
Administrative/Drafter $90.00 - $120.00
Moffat & Nichol Rates
PROFESSIONALS
Supervisory Engineer/Scientist $267.00
Senior Engineer/Scientist $250.00
Engineer/Scientist III $234.00
Engineer/Scientist II $205.00
Engineer/Scientist I $185.00
Staff Engineer/Scientist $148.00
TECHNICANS
Senior Technician $200.00
Designer $189.00
CADD II $162.00
CADD I $120.00
CLERICAL
Project Controls/Word Processing $120.00
General Clerical $94.00
SPECIAL
Principal Engineer/Scientist $282.00
Deposition & Trial Testimony $497.00
Environmental Collaborative Rates
Principal Consultation Rate $180.00
Contract Research Rate $140.00
GIS/Graphic Production Rate $90.00
Word-processing Rate $90.00
ENGEO Rates
President $410.00
Principal $310.00
Associate $260.00
Senior Engineer/Geologist/Seismologist $230.00
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit B – Page 3 of 4 Project Engineer/Geologist/Seismologist $208.00
Environmental Scientist $192.00
Staff Engineer/Geologist/Seismologist $188.00
Assistant Engineer $150.00
Construction Services Manager $180.00 *
Senior Field Representative $163.00 */**
Senior Field Representative I $148.00 */**
Field Representative $133.00 */**
Environmental Technician $138.00 */**
Senior Laboratory Technician $165.00
Laboratory Technician $150.00
Senior CAD Specialist $158.00
Senior GIS Analyst $173.00
GIS Analyst $163.00
CAD Specialist $148.00
Network Administrator $205.00
Project Assistant $122.00
* Two-hour minimum portal to portal and cancellations within 24 hours. * OVERTIME RATES: Rates increased by factor of 1.5 for all hours worked in excess of eight (8) Monday through Friday, and the first eight (8) hours worked on Saturday. Rates increased by factor of 2.0 for all hours worked in excess of twelve (12) Monday through Friday, all hours worked in excess of eight (8) on Saturday and all hours worked on Sunday and holidays.
** For Prevailing Wage projects, increase the hourly rate by $15. ** Rates increased by factor of 1.25 for night shift hours (hours commencing after 4:00 p.m. or before 4:00 a.m.); rates increased by factor of 1.875 (an additional factor of 1.5) for all night shift hours in excess of eight (8).
Giacalone Design Services Rates
Principal $250.00
Project Manager $200.00
PG&E Applicant Designer $175.00
Lighting Designer $110.00
Drafter $95.00
Job Administrator $75.00
TBD Consultants Rates
Principal $235
Project Manager $205
Senior Estimator / MEP Estimator $205
Senior Project Controller / Senior Scheduler $205
Estimator / Scheduler / Project Controller $195
Assistant Estimator / Assistant Project Controller $165 Administrative / Technical Support $95
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit B – Page 4 of 4 Reimbursable Expenses
• Charges for outside services, equipment, materials, and facilities not furnished directly by BKF Engineers will be billed as reimbursable expenses at cost plus 10%. • Such charges may include printing and reproduction services, shipping, delivery, and courier charges; subconsultant fees and expenses; agency fees; transportation on public carriers; and consumable materials.
• Allowable mileage will be charged at the prevailing IRS rate per mile.
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit C – Page 1 of 1
EXHIBIT C
INDEMNIFICATION
A. Consultant shall, to the extent permitted by law, including without limitation California Civil Code 2782 and 2782.8, indemnify, hold harmless and assume the defense of, in any actions at law or in equity, the City, its employees, agents, volunteers, and elective and appointive boards, from all claims, losses, and damages, including property damage, personal injury, death, and liability of every kind, nature and description, arising out of, pertaining to or related to the negligence, recklessness or willful misconduct of Consultant or any person directly or indirectly employed by, or acting as agent for, Consultant, during and after completion of Consultant’s work under this Agreement.
B. With respect to those claims arising from a professional error or omission, Consultant shall defend, indemnify and hold harmless the City (including its elected officials, officers, employees, and volunteers) from all claims, losses, and damages arising from the professionally negligent acts, errors or omissions of Consultant, however, the cost to defend charged to Consultant shall not exceed Consultant’s proportionate percentage fault.
C. Consultant's obligation under this section does not extend to that portion of a claim caused in whole or in part by the sole negligence or willful misconduct of the City.
D. Consultant shall also indemnify, defend and hold harmless the City from all suits or claims for infringement of any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or any other proprietary rights of any person or persons because of the City or any of its officers, employees, volunteers, or agents use of articles, products things, or services supplied in the performance of Consultant’s services under this Agreement, however, the cost to defend charged to Consultant shall not exceed Consultant’s proportionate percentage fault.
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit D – Page 1 of 4
EXHIBIT D
The novel coronavirus (“COVID-19”) has been declared a worldwide pandemic by the World Health Organization. The City of San Leandro is currently in a local emergency and state of emergency due to the COVID-19 pandemic.
COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact, through touched surfaces, and in airborne particles. As a result, federal, state, and local governments, including the City of San Leandro, and federal, state, county, and local health agencies recommend social distancing and additional cleaning protocols to limit the spread of the disease. The City has taken steps and put in place preventative measures recommended by federal, state, and local health agencies to reduce the spread of COVID-19. These measures include steps each person must take to prevent the spread of COVID-19 and include, but are not limited to, requiring face coverings, frequent hand washing and/or use of hand sanitizer, social distancing where possible, limiting of person-to-person contact, frequent cleanings of high-touch surfaces, and avoiding entering any building if they have COVID-19 symptoms.
Consultant shall obey all local orders and abide by all applicable preventative measures recommended by federal, state, county, and local health agencies and any preventative measures specifically implemented by the City. Consultant agrees that when entering any City buildings, Consultant will follow all COVID-19 related signage, wear a face covering, follow all social distancing protocols, and abide by any other COVID19 preventative measure that are in place when performing the services described in this Agreement.
Consultant shall also adhere to any subsequently communicated COVID-19 preventative measures as directed by City staff. The COVID-19 preventative measures are subject to change over time, and Consultant shall maintain knowledge of and adhere to the current COVID-19 preventative measures when interacting with City employees, officials, volunteers, agents, and representatives, and when entering City buildings.
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit D – Page 2 of 4
EXHIBIT E
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract.
B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to 8 hours during any one calendar day, and 40 hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of 8 hours during any one calendar day and 40 hours during any one calendar week is permitted upon compensation for all hours worked in excess of 8 hours during any one calendar day and 40 hours during any one calendar week at not less than one-and-one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A.
B. In accordance with California Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply with California Labor Code Section 1775, which establishes a penalty for each worker engaged in the performance of the services described in Exhibit A that the Consultant or any subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit D – Page 3 of 4 prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their obligations under the California Labor Code. The Consultant or subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements:
1. The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records.
3. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of California Labor Code Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project.
The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be submitted directly to the Labor Commission, and available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E Consulting Services Agreement between City of San Leandro and BKF for Shoreline Park at the Marina Exhibit D – Page 4 of 4 Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subcontractors engaged in performance of the services described in Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Consultant or subcontractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment. 3525646.1
DocuSign Envelope ID: 5165BDF7-B7E7-4364-9995-BB0EC8A21F0E