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9 AGREEMENT WITH HDR ENGINEERING, INC.
FOR PROFESSIONAL CONSULTANT SERVICES
FOR IMMEDIATE ACTION PROJECTS PACKAGE III PROJECT
This agreement, made and entered into this day of__________ by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California, hereinafter referred to as "CITY", and HDR ENGINEERING, INC., a Nebraska corporation, hereinafter referred to as "CONSULTANT":
RECITALS:
A. CITY desires certain design professional services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these design professional services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF PROJECT
The scope of services to be performed by CONSULTANT under this Agreement is described in Exhibit A, Scope of Services, attached and incorporated by reference.
SECTION 2 - RELIANCE UPON PROFESSIONAL SKILL OF CONSULTANT It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 3 - PROJECT COORDINATION/STAFFING
3.1CITY
MATTHEW FABRY, PUBLIC WORKS DIRECTOR, will be the representative of CITY for all purposes under this Agreement. THOMAS RUARK is hereby designated as the PROJECT MANAGER and shall supervise the day-to- day progress and execution of this Agreement.
3.2CONSULTANT
CONSULTANT's services are unique and personal. CONSULTANT shall not assign or transfer its interest or obligation under this Agreement without the CITY's written consent. CONSULTANT shall not subcontract its duties under this Agreement without the CITY's written consent.
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9 CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. MALIKA RAMANATHAN is hereby designated as the PROJECT DIRECTOR for CONSULTANT.
CONSULTANT shall assign a PROJECT COORDINATOR to represent CONSULTANT during the day-to-day work on the Project. JILLIAN DRESSLER is hereby designated as the PROJECT COORDINATOR for CONSULTANT.
CONSULTANT shall assign additional key personnel as follows:
Electrical Engineer – Gustavo Iniguez Vazquez
Electrical Engineer – Robb McComb
Electrical Engineer – Raymon Genato
Project Coordinator – Tom Hoffman
In addition, CONSULTANT is specifically authorized to subcontract with the following subconsulting firms to assist in providing the services required by this Agreement:
___________________________
___________________________
___________________________
CONSULTANT shall be responsible for employing or engaging all sub-consultants necessary for performance of the CONSULTANT’s scope of work. CONSULTANT shall manage, evaluate, and incorporate sub- consultants work into the project as necessary.
All work on this project shall be accomplished by the above-named CONSULTANT's personnel and subconsultants. CONSULTANT shall not substitute personnel or subconsultants without the CITY's written consent.
SECTION 4 - INDEPENDENT CONTRACTOR
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 5 - DUTIES OF CONSULTANT
CONSULTANT's services shall be furnished as described below and as more particularly described in Exhibit A, Scope of Services. Any changes in the Scope of Services must be approved in advance, in writing, by the Public Works Director.
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all studies, reports, designs, drawings, specifications, and other items furnished by CONSULTANT under this Professional Services – Estero (PW) Page 3 of 18
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9 Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its studies, reports, designs, drawings, specifications, and other items.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
All documents, drawings and specifications relating the project prepared by CONSULTANT or CONSULTANT’s approved sub-consultants shall be approved, signed, and sealed by professional engineers duly registered in the State of California for each required discipline. The Contract Documents prepared by CONSULTANT shall provide for a completed project that conforms to all applicable national, state and local construction codes and ordinances, building, fire, electrical, plumbing and occupancy codes and standards.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT. No subconsultant of CONSULTANT will be recognized by CITY as such; rather, all subconsultants are deemed to be the agents of CONSULTANT, and CONSULTANT agrees to be responsible for their performance. CONSULTANT shall give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees and subconsultants, if any, and shall keep the work under its control. If any employee or subconsultant of CONSULTANT fails or refuses to carry out the provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper manner, he or she shall be discharged immediately from the work under this Agreement on demand of CITY.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
CONSULTANT shall furnish CITY with every reasonable opportunity for CITY to ascertain that the services of CONSULTANT are being performed in accordance with the requirement and intentions of this Agreement.
SECTION 6 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine all documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 7 - TERM, PROGRESS AND COMPLETION
This Agreement shall commence upon execution of the Agreement. The Parties agree that the Agreement shall be considered effective from August 1, 2025, to December 30, 2026.
SECTION 8 - PAYMENT
Payment shall be made by the CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performances of the services and any reimbursable expenses set forth in this Agreement, CITY agrees to pay CONSULTANT a fee based on verified time and materials not to exceed $332,916.00. Requests for payments shall be itemized and correspond to the various items of work described in Exhibit A and shall be based on the rate and cost schedule set forth in Exhibit C.
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9 Payment for extra work or changes in the work will not be made unless for work authorized in advance in writing by the PUBLIC WORKS DIRECTOR. Prior to commencing such extra work or changes, CONSULTANT and CITY shall agree upon an estimated not to exceed cost for such extra work. In no event shall CONSULTANT be paid for additional work that is necessary because of CONSULTANT's errors or oversights.
CONSULTANT shall maintain complete and accurate records as to the number of hours worked by persons and the direct costs incurred during each phase under this Agreement. All such records shall be maintained on a generally accepted accounting basis and shall be clearly identified and readily accessible.
CONSULTANT shall provide free access to such books and records to the CITY at all times, shall permit the CITY to examine and audit those books and records, shall permit the CITY to make copies of those books and records, and shall permit the CITY to inspect all work data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. All accounting records shall provide an understandable breakdown of costs charged to this Agreement. All records encompassed by this subparagraph, as well as supporting documentation, shall be kept separate from other CONSULTANT documents and records and shall be maintained by CONSULTANT for three (3) years after CONSULTANT's receipt of final payment under this Agreement.
CONSULTANT shall bill the CITY within thirty (30) days for all compensable activity on the project.
CITY shall pay CONSULTANT within thirty (30) days of receipt of billings. If CITY disagrees with any portion of a billing, the CITY shall promptly notify CONSULTANT of the disagreement, and the CITY and the CONSULTANT shall attempt to resolve the disagreement. CITY's payment of any amounts shall not constitute a waiver of any disagreement.
SECTION 9 - CHANGES IN WORK
CITY may order changes in scope or character of work, either decreasing or increasing the amount of CONSULTANT's services by amending this Agreement. In the event that such changes are ordered, CONSULTANT shall be entitled to full compensation for all work performed prior to receipt of notice of change. In no event shall CITY be liable for payment unless the amount of such extra compensation shall first have been agreed to in writing by CITY.
In the event that changes are ordered pursuant to this section, the schedule for progress and completion in Section 7 of this Agreement and compensation in Section 8 of this Agreement shall be adjusted by negotiation between CONSULTANT and CITY, subject to approval, if necessary, by the San Mateo City Council.
SECTION 10 - CONFLICT OF INTEREST
CONSULTANT understands that its professional responsibility is solely to CITY. CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
CONSULTANT shall not knowingly, and shall take reasonable steps to ensure that, it does not employ a person having such an interest in the performance of this Agreement. If after employment of a person, CONSULTANT discovers that it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, CONSULTANT shall promptly sever the employment relationship.
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9 SECTION 11 - TERMINATION
A. Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY may, by ten days written notice to CONSULTANT, terminate this Agreement in whole or in part at any time, either for CITY'S convenience or because of the failure of CONSULTANT to fulfill its agreement obligations. Upon receipt and within ten days of such notice CONSULTANT shall:
1. Immediately discontinue all services affected (unless the notice directs otherwise); and
2. Deliver to CITY all data, documents, reports, estimates, summaries and such other information and materials as may have been accumulated by CONSULTANT in performing this Agreement, whether completed or in progress.
B. If the termination is for the convenience of CITY, CONSULTANT shall be compensated for all authorized work performed prior to notification of termination but no amount shall be allowed for anticipated profit on unperformed services.
C. If, after any notice of termination for failure to fulfill agreement obligations, it is determined by a court or other arbitrator that CONSULTANT had not so failed, the termination shall be deemed to have been effected for the convenience of CITY. In such event, adjustment in the agreement price shall be made as provided in paragraph (B) of this section.
D. CONSULTANT may terminate this Agreement or suspend work on the project upon sixty (60) days written notice to CITY, but only in the event of substantial failure of performance by CITY or in the event CITY abandons or indefinitely postpones the Project.
E. Upon termination of this Agreement or suspension of work on the project by either CITY or CONSULTANT, all duties of CITY and CONSULTANT as set forth in Sections 5 and 6 herein above shall terminate.
SECTION 12 - STATUS OF REPORTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of the CITY, whether the project for which they are made is executed or not. All documents furnished to CONSULTANT by the CITY and all reports and supportive data prepared by the CONSULTANT in connection with the performance of this Agreement are the CITY's property and shall be delivered to the CITY upon the completion of CONSULTANT's services or at the CITY's written request. All reports, information, data, and exhibits prepared or assembled by CONSULTANT in connection with the performance of its services pursuant to this Agreement are confidential until released by the CITY to the public, and the CONSULTANT shall not make any of these documents or information available to any individual or organization not employed by the CONSULTANT or the CITY without the written consent of the CITY before any such release.
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9 SECTION 13 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit D to this Agreement.
SECTION 14 - NONASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 15 - INDEMNITY
CONSULTANT agrees to hold harmless and indemnify CITY and the Estero Municipal Improvement District, their elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY and the Estero Municipal Improvement District, their elected and appointed officials, employees, and agents against any such claims.
SECTION 16 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 17 - COSTS AND ATTORNEYS FEES
Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney’s fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NONDISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subconsultants shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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9 SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY's request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Matthew Fabry, Public Works Director
City of San Mateo
330 West 20th Avenue
San Mateo, California 94403
To CONSULTANT: HDR Engineering, Inc.
Attn: Elizabeth K. Mesbah, Vice President
3003 Oak Road, Suite 500
Walnut Creek, CA 94597
SECTION 22 - AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENTS This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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9 SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 25 - GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
SECTION 26 - VENUE
In the event of litigation, venue will be in the County of San Mateo. [SIGNATURES PAGE FOLLOWS]
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9 IN WITNESS WHEREOF, this agreement between the CITY OF SAN MATEO and HDR ENGINEERING, INC. has been duly executed by the parties hereinabove named, as of the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Matthew Fabry
Public Works Director
Date Elizabeth (Libby) K. Mesbah
Its Authorized Agent
Vice President
If a Corporation, can be either
1) President or 2) Vice
President plus an additional
corporate officer (i.e.,
Secretary, Treasurer) who shall
sign below.
Date
APPROVED AS TO FORM ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
Linh P. Nguyen
Assistant City Attorney
Date Date
Attachments:
Exhibit A: Scope of Work
Exhibit B: Reserved
Exhibit C: Cost Schedule
Exhibit D: Insurance Requirements
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9 EXHIBIT A
SCOPE OF SERVICES
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9 EXHIBIT B (Reserved)
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9 EXHIBIT C
COST SCHEDULE
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9 EXHIBIT D
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1.Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2.Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3.Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
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9 Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.