FIRST AMENDMENT TO AGREEMENT FOR CONSULTING SERVICES FOR THE RUMRILL BOULEVARD COMPLETE STREETS PROJECT NO. 0700
THIS FIRST AMENDMENT TO AGREEMENT FOR CONSTRUCTION
MANAGEMENT SERVICES is enteredinto the 21" day of June, 2023, by andbetweenthe CITY OF SAN PABLO, a municipal corporation (" City") and CONSOR Engineering, Inc. a wholly ownedsubsidiaryof CONSORNorthAmerica, Inc. (formerlyQuincyEngineering, Inc.) Consultant").
RECITALS
WHEREAS, on June7, 2021, CITY and Consultant entered into an Agreement for constructionmanagementservicesfor the Rumrill CompleteStreetsProjectNo. 0700 Services");
WHEREAS, on October 12, 2022the City was notified that Quincy Engineeringwas acquiredandbecameCONSORNorth America, Inc. a wholly ownedsubsidiaryof CONSOR North America, Inc.;
WHEREAS, projectdelaysto theRumrill CompleteStreetsProject, whichhave occurreddueto supplychainshortagesduetoCOVID-19, utility relocationsby localdistricts, andextremewinter weather, haverequiredadditional Servicesto managecompletion of construction of the project; and
WHEREAS, thepartieshaveagreedto modifythetermsof thatAgreementrelatedto (1) Compensation, and (2) Effective Date and Term.
NOW, THEREFORE, THE PARTIES DO MUTUALLY AGREE AS FOLLOWS:
COMPENSATION. Section 2 of the Agreement, " Compensation," is amended to include the following provision:
For additional servicessetforth in Exhibit 1 satisfactorilyrendered, CITY shall payconsultantupto anadditionalOneHundredThousandDollars ($100, 000) for a total compensation not to exceed One Million Four Hundred Fifty - One Thousand Four Hundred Seventy -Sig Dollars ($ 1,451, 476)."
2. EFFECTIVE DATE AND TERM. Section 4 of the Agreement, " Effective Date and Term," is replaced with the following provision:
The term of this Agreement, (" Term") begins on the Effective Date set forth above, and expires on June 30, 2024. If the Term expires later than the end of the City'sFiscalyear, thecontinuationoftheTermintothenextFiscalyearwill be contingentupontheCity'slawful encumbranceorappropriationof newfundsfor the Agreement."
3. All othertermsandconditionsof theAgreement, asamended, shallremainin full force and effect.
APPROVED AS TO FORM:
P.P. By
176r Teresa L. 4Sker, ' Att e
CITY OF SAN PABLO
A Municipal Corporation
By
Matt Rodriguez, City Man *
Dated:
ceA2o2- j V
CONSOR NORTH A.MERICA, , INC. a
wholly owned subsidiary of CONSOR North
A
By
R. Brent Lemon, Principal
Dated: 6/27/202311:36:27PMF.DT
ATTEST:
BY A. Dated Q/ Z Z, 3
oro y antt, Iffity C1er
0 City of San Pablo/ CONSOR North America, Inc.
ConsultantServices — RumritI Complete StreetsProject (0700) Amendment # 1
n consor
November 11, 2022
Allan A. Panganiban
Public Works Director/ City Engineer
City of San PabloI Public Works I Engineering
1000 Gateway Avenue, San Pablo CA 94806 ( new address)
T: ( 510) 215- 3062
AllanP@SanPab] oCA.gov
RE: Notice of Assignment and Request for Acknowledgement 11017Cobblerock Drive Suite 100
Rancho Cordova, CA 95670
916. 368. 9181
QuincyEngineering, Incorporated (QEI) wasacquiredandbecameawhollyownedsubsidiaryofConsorNorth America, Incorporated' (Consor) in May2019. ContractsbetweentheCityof SanPabloDepartmentof PublicWorks andQEImaycontaincontractrequirementsrequiringnoticeforthetransferandassignmentof thosecontractsto anyentityotherthanQEI. ThisletterservesasourrequesttoassignthefollowingContracts (andallassociated amendments, addenda, task orders, and work orders) to our parent Consor:
Contract No. 0700- 3- Construction Management for the Rumri11 Complete Streets Project Consoremploysall staff currentlyworkingontheseagreements, andyoushouldseenochangein the day-to-day progressandconductoftheworkunderthesecontracts. Consoragreestoassumefullresponsibilityfor execution and completion of all contracts with the City of San Pablo Department of Public Works effective immediately. Consoragreesthat the provisionof servicesunderthe agreementswill beunchanged.
Foryour records, attached are the following:
Consor' s W- 9 Form
Certificate of Insurance
An updated certificate of insurance, with all coverages identical to those currently provided underQEI' s certificate of insurance. Notethat Consorassumes responsibility for all QEI's prior acts and has QEIlisted as an insured under Consor's professional liability insurance policy, with full prior acts coverage.
In light of the information noted above and the documents attached, we respectfully request the City of San Pablo Department of Public Works acknowledge the assignment of the aforementioned agreements to Consor. Except as expresslyset forth herein, this acknowledgement letter neither amends, modifies, nor otherwise alters the terms and conditions of the Contracts/Agreementsyour agency has negotiated, which remain in full force and effect.
This Assignment will becomeeffectively immediately upon your signature. Pleasereturn a copyto our attention at Jason. Jurrens@consoreng. com.
Ifyouhaveanyquestions, pleasefeelfreeto contactmeanytime at 916.368.9181orbyemailat Jason. Jurrens@consoreng. com.
www. consoreng. com
Formerly known as Murraysmith, Inc.
It consor
Sincerely,
Consor Engineers, Inc
1 5
Jason Jurrens, PE
California Regional Manager
AssignmentApprovedandAcceptedthis 15th dayof November 2022 City of San Pablo Department of Public Works
E-SIGNED by Matt Rodriguez
By: on 2022- 11- 15 15: 16: 03 PST
Its: City Manager
11017 Cobblerock Drive Suite 100
Rancho Cordova, CA 95670
916. 368, 9181
www. consoreng. com
CITY OF SAN PABLO
AGREEMENT FOR CONSULTING SERVICES
Project No. 0700/ Agreement No. 0700. 3
THIS AGREEMENT (" Agreement', dated and effective this 7th day of June, 2021 Effective Date"), is by and betweenthe City of San Pablo, a municipalcorporationorganized and existingunderthe laws of the State of California, ("City"), and Quincy Engineering. Inc., a California corporation , (" Consultant") ( individually, a "Party," and collectively, the "Parties").
RECITALS
WHEREAS, the City desires to engage a consultant to provide Construction Management services to the City ("Services") as further set forth in this Agreement; WHEREAS, the Citydesiresto engagea consultantwhowill act at alltimes in the City's bestinterestandwill respectthe trustand confidenceplacedinthat consultantbythe City; and WHEREAS, Consultant has represented to City that Consultant has the special training, skill, competenceandexpertisenecessaryto providethe Servicesneededbythe City; desiresto enterintothisAgreementwith the Cityas an Independentcontractor; and is willingto providethe Services on the following terms and conditions.
NOW, THEREFORE, Consultant and the City agree as follows:
TERMS AND CONDITIONS
1) Scol2e of Services.
A. Scope of Services. Consultant agrees to provide the Services to the City as specifiedin, collectively, thescopeofservicessetforthintheCity's RequestforProposals, dated January 7, 2021 and any addenda thereto (" RFP°), attached as Exhibit A and incorporated herein, and the scope of services set forth in Consultants proposal dated March 11, 2021 Proposal"), attached as Exhibit B and incorporated herein. In the event of any conflict or inconsistencybetweenany of thetermsof the RFP, the Proposal, andthis Agreement, the terms most favorable to the City will prevail. Any services not encompassedin this Section (1) are additional services (" Additional Services") subjectto priorwrittenauthorizationby the City, as further specified below in Section ( 3), " Additional Services." B. Duality of Performance. Consultantwill providethe Servicesand any authorized Additional Services in accordance with the standards of its profession; in accordance with the terms, conditions, and objectives of this Agreement; and in a manner satisfactory to the City Manager or his or her authorized delegee (" City Manager"). Consultant represents that it possessesthenecessaryskills, background, andlicensesto performtheServicesor Additional Services. Consultantis solelyresponsibleforthe qualityand suitabilityof the Servicesit provides pursuantto this Agreement. If, duringthe course of this Agreement, the City Managernotifies Consultant that the Services are not satisfactory, in whole or in part, Consultant will promptly take the correctiveactionrequiredbytheCity Manager, at noextracostto theCity. Failureto promptly take such corrective action constitutes a material breach of this Agreement and cause for termination In the City's discretion_ This standard of care Will not be construedto impose a mandatoryduty on the City within the meaningof GovernmentCode section 815.5. The City's Updated: 04/ 21 Page 1
acceptance of Services performed under this Agreement will not operate to waive or release Consultant's obligationunderthis paragraph.
C. COVID- 18 Pandemic. All City of San Pablo programs and services must be in compliance with current health orders issued by Contra Costa County Health Services at; tt s:l/ www. coronavl s.cc eakh. or ihealth- orders; including but not limited to social distancing requirements: httns:llcchealth.orcr/coronavirus/pdf/2020-0331AppendixA- Social- lstancin -Protocol. df. ConsultantshallcomplywiththeserequirementsandcontactCitystaff immediately if there is any issue with compliance.
D. Time is of the Essence. In the { performance of this Agreement, time is of the essence. Consultantmustbeavailableto beginprovidingtheServicesuponthe EffectiveDateof thisAgreement, andmustcompletetheServiceswithinthetimespecifiedinSection (4), °Effective Date and Term."
E. Primary Service Provider. The City has approved of Mike Hagerty, P.E. as Consultant's primaryprovideroftheServicesunderthisAgreement, andnootherpersonwillbe acceptedastheprimaryprovideroftheServiceswithouttheCity's priorwrittenconsent, F. Labor Code Compliance. If the Services are "public works" services as defined inLaborCodesection1720etseq. andtheAgreementisforanamountgreaterthan $1,000, the Agreementis subjectto all applicablerequirementsof Chapter1 of Part 7 of Division2 of the LaborCode, beginningat section1720, andtherelatedregulations, includingbutnotlimitedto requirements pertaining to wages, working hours and workers' compensation Insurance.
Consultantmustalsopostalljob sitenoticesrequiredby lawsor regulationspursuantto Labor Code section 1771. 4.
1. Prevailing Wages: EachworkerperformingServicesunderthis Agreementthat Is coveredunder LaborCodesection1720or 1720.9, must be paid at a rate not less than the prevailing wage as defined in sections 1771 and 1774 of the Labor Code. The prevailingwage ratesare onfile with the Cityand are availableonline at http:l/www.dir.ca,gov/DLSR. pursuant to Labor Coda section 1775, Consultant. andanysubconsultantwillforfeittoCityasa penaltyupto $200foreachcalendar day, or portionof a day, for eachworkerpaidlessthantheapplicableprevailing wage rate, in addition to paying each worker the difference between the applicable wage rate and the amount actually paid.
2. Working Day: Pursuant to Labor Code section 1810, eight hours of labor consists of a legalday's work. Pursuantto LaborCodesection1813, Consultantwill forfeit to Cityas a penaltythe sumof $25 for eachday duringwhicha worker employed by Consultantor any subconsultantis requiredor permittedto work more than eighthoursduringanyonecalendarday, or morethan40 hourspercalendarweek, unless such workers are paid overtime wades under Labor Code section 1815. All Servicesmust be carriedout duringregularCityworkingdays and hoursunless otherwisespecifiedinthescopeofservicesorauthorizedinwritingbyCity.
3. Payroll Records: Consultant and its subconsultants must maintain certified payroll records in compliance with Labor Code sections 1776 and 1812, and all implementingregulationspromulgatedby the Departmentof IndustrialRelations D1RI. Foreachpayrollrecord, Consultantandits subconsultantsmustcertify under penalty of perjury that the information In the record is true and correct, and Updated_ 04v21 page 2
that it has complied with the requirements of Labor Code sections 1771, 1811, and 1815. Unless the Agreement is for an amount under $ 25, 000, Consultant must electronicallysubmit certified payroll records to the Labor Commissioneras required under Callfornia law and regulations.
4. Apprentices. If the amount of the Agreement is $30, 000 or more, Consultant must complywiththeapprenticeshiprequirementsin LaborCodesection1777.5.
S. DIR Monitoring, Enforcement, and Registration: The Servicesare subjectto compliancemonitoring and enforcementby the DIR pursuant to Labor Code section 1725. 5, and, subject to the exception set forth below, Consultant and any subconsultants must be registered with the DIR to perform public works projects.
The registration requirements of Labor Code section 1725.5 do not apply if the Agreement is for an amount under $ 25, 000_
2) Compensation. As full compensation for the satisfactory and timely performance of the Services as specified in Section ( 1), " Scope of Services," and the attached exhibits, City hereby agreestopayConsultanta sumnottoexceedOneMillionThreeHundredFiftyOneThousand Four Hundred Seventy Six Dollars ( $ 1,351, 476 ) as fallows:
See cost proposal in Exhibit B
Consultantwillbepaidallundisputedamountswithinthirty (30) daysofCity's receiptofdetailed Invoicesfor Servicesprovidedto the City Manager's satisfactionduringthe precedingcalendar month. Invoices must include all of the information contained in Section ( 7), ' Billings," below. Each invoicemustbe signedbyan authorizedrepresentativeof Consultant, verifyingthatthe invoiced Serviceshavebeenperformed. Consultantwill not beentitledto compensationfor Additional Services, as defined below in Section ( 3), unless authorized by City In writing in advance, and memorialized in an amendment to this Agreement executed by the authorized representatives of eachParty. ThisSection (2) supersedesanyconflictingor inconsistentprovisionsintheProposal. 3) Additional Services. In addition to the Services included in Section ( 1), " Scope of Services," the Partiesmayfromtimeto timeagreethatConsultantwill provideAdditionalServices for additional compensation, as authorized by the City Manager. The nature and scope of the Additional Services, including the time for performanceand terms for mutually agreeable additional compensation must be memorialized in a writing, executed by both Parties, as further specified in Section ( 25), " Amendments," before Consultant may begin providing the Additional Services. Consultant will not be entitled to compensation for any Additional Services performed without a written amendment to include the Additional Services in this Agreement. If Consultant believesthat servicesthat it is directedto performby Cityare not includedinSection (1), "Scope of Services," Consultant will promptly notify the City in writing of the basis for this belief. If the City agrees that the subject services are not included in Section ( 1), " Scope of Services," the Parties will promptlyexecute a writing to authorizethe services as Additional Servicesfor mutually agreed - upon additional compensation. Except as otherwise specified in the written authorization, all Additional Services are subject to the same terms and conditions as all Services under this Agreement, including, billing, record -keeping, reporting, insurance, indemnity, and compliance with all applicable laws and standards.
4) Effective Date and Term, The term of this Agreement (" Term") begins on the Effective Date set forth above, and expires on June $ 0, 2023. If the Term expires later than the end of the Updated: 04121 rage 3
City's fiscalyear, the continuationof theTermintothe nextfiscalyearwill becontingentuponthe City' s lawful encumbrance or appropriation of new funds for the Agreement. 5) Assignmentand Subcontracting. A substantialinducementto Cityfor enteringInto this Agreement was, and is, the reputation and competence of Consultant. The assignment or subcontractingof thisAgreementby Consultant, or any interesttherein, is prohibitedwithoutthe priorwrittenapprovaloftheCityManager. TheCityhasauthorizedConsultantto usethefollowing SubconsultantslSubcontractors as specified:
SubconsultantlSubcontractor Name Subconsultant/ Subcontractor Services UNICO Engineering, Inc. Assistani resident Engineer, Inspection BSK Associates Materials Testing
J Majors and Associates Public Outreach
6) Independent Contractor Status. It is expresslyunderstoodandagreedbythe Parties that Consultant, while providing Services pursuant to this Agreement, is an independent contractor and not an employee of the City. Consultant is solely responsible for the means and methodsbywhichit providestheServices. Consuitant,issolelyresponsibleforallmattersrelating tothepaymentof its employees, includingcompliancewith socialsecurity, withholdingtax andall other lawsand regulationsgoverningsuch matters. Consultantis solely responsiblefor Its own acts and those of its agents and employees during the Term of this Agreement, Consultant will notrepresent, at anytimeorinanymanner, thatConsultantisanemployeeofthe City. Consultant will exerciseits judgment in recommendingto City the methodsby which to accompfrshCity's objectivesand needs. Consultantacknowledgesthatthe Citywill provideno training. Consultant will providewhatevertools and materialsthat are necessaryto completea clientengagement.
Consultant is free to accept, and has accepted in the past, other client engagements. Consultant is responsiblefor purchasing, bringing, providing, and controllingany and all equipment, tools, instruments, etc. needed for completion of the Services set forth herein, as well as for maintenanceanduseof suchequipment. It IsunderstoodthatConsultantIshiredona temporary basis only, and that If the City andlor Consultant desires to continue Consultant's services after expiration of the Term or termination of this Agreement, Consultant must enter into a new agreement.
7) Billings. Consultant's invoices must include the following information: ( a) a brief descriptionof Servicesperformed, Includingany AdditionalServices: (b) the date the Services were performed; (c) the numberof hoursspentand by whom; (d) the currentAgreementnot -to - exceed amount; ( e) the amount previously billed; ( f) the total paid to date; (g) the outstanding balance due, if any; ( h) the current invoice amount; ( 1) total amount billed against the Agreement to date; 0) the remaining balance of the not -to -exceed amount; and (k) the Consultant's signature.
Except as specificallyauthorizedby City, Consultantwill not bill City for duplicate Services performed by more than one person. Consultant may not submit any billing for an amount in excess of the maximum amount of compensation authorized in Sections ( 2) and ( 3), above.
Consultant is solely responsiblefor its office and overhead costs, including furniture and equipmentrental, supplies, salariesof employees, telephonecalls, postage, advertising, and all other expenses incurred by Consultant in the performance of this Agreement. 8) Advice and Status Reporting. Consultantwill providetheCitywithtimelyreports, orally orinwriting, of allsignificantdevelopmentsarisingduringperformanceof itsServices, andprovide the City with Informationas is necessaryto enable City to monitor the performanceof this Updated: 04/ 21 Page 4
Agreement, includingstatementsand data demonstratingthe effectivenessof the Services providedinachievingtheCity's expressgoalsandobjectives. TheCitymaywithholdpayments otherwisedue to Consultantpendingtimely deliveryof all such reportsand information.
Consultantwill promptlynotifythe City Managerof any mattersthat couldadverselyaffect Consultant's abilityoreligibilityto continueto provideServicesunderthisAgreement. 9) Retention of Records. Consultant' s complete files, including all records, employee time sheets, and correspondencepertainingto the Serviceswill be availablefor review by the City uponrequest, and copiesof pertinentreportsandcorrespondencewill befurnishedfor the City's files uponrequestby the City. Consultantwill maintainadequatedocumentationto substantiate all charges for hours and materials charged to City underthis Agreement. Consultant will maintain therecordsandanyotherrecordsrelatedto theServicesorthisAgreementandwillallowCity accessto suchrecordsfora periodoffouryearsaftertheexpirationoftheTermorterminationof theAgreement. AtCity's request, oruponexpirationorterminationofthisAgreement, Consultant willreturnto Cityall plans, maps, costestimates, projectfinancialrecords, reports, andrelated documents. All researchinformation, plans, diagrams, financialrecords, reports, cost estimates orotherdocumentspreparedor obtainedunderthetermsofthisAgreementwillbedeliveredto andbecomethepropertyoftheCityandalldatapreparedor obtainedunderthisAgreementwill be made available, upon request, to the City without restrictions or limitations on their use. This Section (8) will survive expiration of the Term or termination of the Agreement. 10) Written Reports and Docum nt.. In accordance with Government Code section 7550, IfthetotalcompensationpaidtoConsultantunderthisAgreementexceeds $5,000, anydocument orwrittenreportpreparedbyConsultantfor or underthedirectionof Citywill containthenumbers and dollar amounts of all contracts and subcontracts relating to the preparation of such document or written report. The contract and subcontract numbers and dollar amounts shall be contained in a separate section of such document or written report, When multiple documents or reports arethe subjector productof thisAgreement, thedisclosuresectionmayalsocontaina statement indicatingthat the total contract amount representscompensationfor multiple documentsor reports.
11) RecordandFiscalControlSystem. Consultantwillmaintainitsfinancialrecordsand fiscalcontrolsystemsin a commerciallyreasonablemanner. Consultantwillmaintainpersonnel and payrollrecordsto adequatelyidentifythe sourceand applicationof all receivedfunds; withhold income taxes; pay employment taxes ( including Social Security), unemployment compensation, worker' s compensation and other taxes as may be due. Consultant will maintain an effective system of internal control to assure that funds provided through the City are used solelyfor authorizedpurposes.
12) Access to Records: Audits. The City will have access at any time during normal businesshoursand as oftenas necessaryto any bankaccountand books, records, documents, accounts, files, reports, and other propertyand papersof Consultantrelatingto the Servicesto be provided under this Agreement for the purpose of making an audit, review, survey, examination, excerpt or transcript.
13) Consultant' s Testimony. Unless the Services include serving as an expert witness, Consultantagreesto consultwith Cityandtestifyat City's requestat no additionalcostotherthan normalwitnessfees if litigationis broughtagainstCity in connectionwith ConsultantsServices.
This Section (12) will survive expiration of the Term or termination of the Agreement.
Updated: D4121 Page 5
14) Assignment of Personnel. Consultant will only assign competent and qualified personnelto performtheServices. If CityasksConsultantto removea personassignedto the Services, Consultantagrees to do so immediatelyregardlessof the reason, or the lack of a reason, for City's request.
15) Insurance. Before it may begin performing Services under this Agreement, Consultant mustprocureandprovideproofof the insurancecoverageandendorsementsrequiredbythis Sectionintheformofcertificatesandendorsementsacceptableto City. Therequiredinsurance mustcoverthe activitiesof Consultantandits subconsuitantsor subcontractorsrelatingto or arisingfromthe performanceof the Services, and mustremainin full force andeffectat all times duringtheTermoftheAgreement. Allrequiredinsurancemustbeissuedbyacompanylicensed todo businessin theStateofCalifornia, andeachsuchinsurermusthaveanA.M. Best! sfinancial strengthratingof "A" orbetteranda financialsizeratingof Nil" or better. If Consultantfailsto provide any of the required coverage in full compliance with the requirements of this Agreement, Citymay, atitssolediscretionandinadditionto anyotherremedies, purchasesuchcoverageat Consultant's expense and deduct the cost from payments due to Consultant, suspend performanceof the Services under the Agreement, or terminateConsultantfor default. The procurementof therequiredinsurancewill notbeconstruedto limitConsultant's liabilityunder this Agreement or to fulfill Consultant's indemnification obligations under this Agreement, If coveragelimitscarriedby Consultantexceedthe minimumlimitsspecifiedbelow, thehigherlimits will be deemedto be requiredbythisAgreement.
A. Policies and Limits. Consultant must procure and maintain the following insurancepoliciesand limitsat all timesduringtheTermof thisAgreement:
1. Commercial General Liability Insurance (" CGL" ): The CGt_ policy roust be issuedonanoccurrencebasis, writtenona comprehensivegeneralliabilityform CG 00 01), and must include coverage for liability arising from the operations of Consultant or its subconsultantsor subcontractorsin the performanceof the Services, includingproductsandcompletedoperations, propertydamage, bodily injuryandpersonalandadvertisinginjurywithlimitsof at least $2,000,000.00per occurrence. TheCGLcoveragemay bearrangedundera singlepolicyfor thefull limitsrequiredorbya combinationofunderlyingpolicieswiththebalanceprovided by excessor umbrellapolicies, providedeachsuch policycomplieswith the requirements set forth herein.
2. Automobile Liability: The automobileliabilitypolicymust providecoverageof at least $1,000,000.00combinedsingle -limitperaccidentfor bodilyinjury, deathor property damage.
3. Workers' CompensationInsuranceandEmployer's Liability: Thepolicymust comply with the requirements of the California Workers' Compensation Insurance and Safety Act, providing coverage of at least $ 1,000, 000. 00, or as otherwise required by law.
4, Professional Liability: The professional liability insurance policy must insure againstthe Consultant's errors and omissionsin the provisionof Servicesunder this Agreement, in an amount not less than $ 1,000, 000. 00 combined single limit.
Anydeductibleorself -insuredretentionmaynotexceed $50,000_ Theprofessional liability policy must include prior acts coverage sufficient to cover all Services provided by the Consultant for this Agreement, and the coverage must continue in Updated: 04Q1 Page 6
effectforfive yearsfollowingfinalpaymentto Consultant. Thefollowingprovisions applyIftheprofessionalliabilitypolicyiswrittenonadalms-madeform:
a. Theretroactivedateof the policymustbeshownand mustbe onor before the Effective Date of the Agreement.
b. The insurance must be maintained and evidence of insurance must be providedfor a continuousperiodof at leastfive years followingexpiration of the Term or termination of the Agreement, whichever occurs first. c. If the coverage is canceled or not renewed and is not replaced with another claims -made policy form with a retroactivedate that is on or before the Effective Date of this Agreement, Consultant must provide extended reportingcoveragefora minimumof fiveyearsfollowingexpirationofthe Term or termination of the Agreement, whichever occurs first. The City has the rightto procure, at Consultant's cost, anyextendedreportingprovisions of the policyif the Consultantcancelscr fails to renewthe coverage. d. A copyof theclaimreportingrequirementsmustbesubmittedto theCity beforeConsultantmaybeginperformingServicesunderthisAgreement.
B. Required Endorsements. The insurance provided by Consultant must include thefollowingendorsementsasspecifiedbelow. Theendorsementsmustbeexecutedbya person authorizedto bindthe issuinginsurer. Theendorsementsareto be providedon forms provided, specified, orapprovedbytheCity. As analternativeto the City'sforms, the Consultant's insurer(s) mayprovidecompletecopiesof .all requiredinsurancepolicies, includingendorsements. 1, Additional Insured Endorsements: The General Liability and Automobile Liabilitypoliciesareto contain, or beendorsedto contain, thefollowingprovisions:
a. The City, its officers, officials, employees, and volunteers (" Additional Insureds°) will be covered as additional insureds with respect to all coveredliability. This mustbe providedin theformof an additionalinsured endorsernentto the Consultant`s insurance policy, using form CG 20 10 11 85, forms CG 20 10 10 01 and GC 20 37 10 01, or equivalent approved by the City. For design professionals form CG 20 07 may be used.
Alternatively, the additionalinsured endorsementmay be providedas a separateowner's policythat complieswith allof the requirementssetforth in this Section 15.
b. The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the policies will apply as though separatepolicieshavebeenissuedto eachof the AdditionalInsureds.
C. The insuranceprovidedby the Consultantis primaryand no insuranceor self-insurance held or owned by any of the Additional Insureds may be called upon to contribute to a loss or defense.
d. Any failureby Consultantto complywith the reportingrequirementsfor a policywill not affectnor abridgethe coverageprovidedfor anyAdditional Insureds.
Updated: M21 rage 7
e. Thecoverageor endorsementwill notcontainany limitationson the scope of protection available to the Additional Insureds,
2. Notice: Eachinsurancepolicyrequiredby this clausemust provideor be endorsed to state that coverage will not be reduced, canceled, or allowed to expire withoutat least30 dayswrittennoticeto the City, unlessdue to non-paymentof premiums, in which case 10 days written notioe is required_
3. Waiver of Subrogation. Each required policy Must include an endorsement providingthat the insurerwill waive any right of subrogationit may have against the City. Consultantherebyagreesto waivesubrogationwhichany insurerof ConsultantmayacquirefromConsultantbyvirtueofthepaymentof anyloss.
C. Deductibles and Self - insured Retentions. Any deductibles or self -insured retentionsfortherequiredinsurancepoliciesaresubjectto priorapprovalby theCityManager.
Before beginningperformanceof the Services, Consultantmust disclose the amountsof the deductiblesandself -insuredretentionsthatapplytotherequiredpolicies. If theCityManager determinesthatthedeductibleorself -insuredretentionforanyrequiredpolicyisunacceptably high, at the optionof City, (1) theinsurermustreduceor eliminatethe deductibleor self -insured retentionwithrespectto theAdditionalInsureds, or (2) theConsultantmustprovidea bondor financialguaranteesatisfactoryto the City guaranteeingpaymentof lossesand related investigations, claimadministration, anddefenseexpenses. DuringtheTermofthisAgreement, Consultantmay not increase any deductiblesor self -insured retentionswith respectto the AdditionalInsureds, withoutthepriorwrittenconsentoftheCityManager, TheCityManagermay conditionsuchconsentuponthe Consultantprocuringa bondor financialguaranteethat is satisfactory in form to the City, guaranteeing payment of Massesand related investigations, claim administration, and defense expenses.
D_ Subconsultants or Subcontractors. Consultant must ensure that each subconsultant or subcontractor is required to maintain the same insurance coverage required for Consultant under this Section ( 15), withrespectto its performanceof Services, includingthe required endorsements. Consultant must confirm that each subconsultant or subcontractor has complied with these Insurance requirementsbefore the subconsultantor subcontractoris permittedto beginServicesunderthis Agreement. Uponrequestbythe City, Consultantmust providecertificatesandendorsementssubmittedbyeachsubconsultantorsubcontractortoprove compliance with this requirement. The insurance requirements for subconsultants or subcontractors do not replace or limit the Consultant insurance obligations. 16) Indemnification. The terms and conditionsset forth in subsection16(A), below, are applicableto this Agreementif the Servicesto be provided by Consultantare not "design professional" servicesas used and defined in Civil Cade section2782.8 (architect, landscape architect, engineering, or land surveyor services). The terms and conditions set forth in subsection 16( B), below, areapplicabletothisAgreementit theServicesto beprovidedbyConsultantare design professional" services as used and defined in Civil Cade section 2782.8 (architect, landscape architect, engineering, or land surveyor services).
A. Indemnification by Eton-Desi n Professionals. Consultant shall, to the fullest extentpermitter) bylaw, indemnify, defend (withcounselacceptabletotheCity) andhold harmlessCity, anditsemployees, officials, volunteersandagents ("IndemnifiedParties") from andagainstanyandalllosses, claims, damages, costsandliabilityof everynaturearisingoutof or resultingfromthe performanceof thisAgreementby Consultant, its officers, employees, Updated: 04121 Page a
agents, volunteers, subcontractors or sub -consultants, excepting only liability arising from the solenegligence, activenegligenceor willfulmisconductof City. liabilities subjectto the duties to defendand indemnifyinclude, withoutlimitation, all claims, losses, damages, penalties, fines, andjudgments, associatedinvestigationandadministrativeexpenses, defensecosts, including but not limited to reasonable attomeys' fees; court costs; and costs of alternative dispute resolution.
1, Thedutyto defendisaseparateanddistinctobligationfromtheConsultant'sduty to indemnify. The Consultantshall be obligatedto defend, in all legal, equitable, administrative, orspecialproceedings, withcounselapprovedbytheCity, theCityanditsdirectors, officers, and employees, immediatelyupontenderto theConsultantof the claiminanyformor at any stageof anactionorproceeding, whetheror notliabilityIsestablished. Anallegationordeterminationof comparativeactivenegligenceor willful misconductby an IndemnifiedPartydoes not relievethe Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, includingexhaustionof any appeals. The defenseobligation includesan obligation to provide independentdefense counsel if the Consultantasserts that liabilityis caused in wholeor in part by the negligenceor willful misconductof an Indemnified Party. If it is finally adjudicatedthat liabilitywas causedby the sole activenegligenceor sole willful misconduct of an IndemnifiedParty, Consultant may Submita claim to the City for reimbursement of reasonable attomeys' fees and defense costs. 2, In the event that Consultant or any employee, agent, subconsultant or subcontractorof Consultantprovidingservicesunderthis Agreementis determinedby a courtof competentjurisdiction or the California Public EmployeesRetirementSystem ("PERS") to be eligiblefor enrollmentin PERSas an employeeof City, Consultantshall Indemnify, defend, and hold harmlessCity for the paymentof any employeeand/or employercontributionsfor PBRS benefits on behalf of Consultant or its employees, agents, subconsuitants or subcontractors, as wellasfor the paymentof anypenaltiesandinterestonsuchcontributions, whichwouldotherwise be the responsibility of City,
31 The review, acceptance or approval of the Consultant' s Services or wormproduct byanyIndemnifiedPartyshallnotaffect, relieveor reducetheConsultant's indemnificationor defense obligations. The provisionsof this Section are not limited by and do not affect the provisions of this Agreement relating to insurance.
4. AcceptancebyCityof insurancecertificatesandendorsementsrequiredunderthis Agreement does not relieve Consultant from liability under this Indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply.
5. Sy executionof this Agreement, Consultantacknowledgesand agrees to the provisionsof this Sectionandthat it is a materialelementof consideration, andthat these provisionssurvivetheterminationof thisAgreement.
B. indemnification by Design Professionals. Consistent with California Civil Code section 2782. 8 (" section 2782. 8"), when the Services to be provided under this Agreement are to be performed by a design professional," as that term is defined under section 2782. 8, Consultantshall, to thefullestextentpermittedby law, indemnify, defendandhold harmlessCity, and Its employees, officials, volunteers and agents (' Indemnified Parties") from and against any and all losses, claims, damages, costs and liability of every nature, including reasonable attorneys' fees and costs, to the extent caused in whole or in part by any negligence, Updated: 04/ 21 Page 9
recklessness, or willful misconduct of Consultant, its officers, employees, agents, subconsultants orsubcontractorsinperformanceoftheServicesunderthisAgreement, butexcludingthesoleor active negligence or willful misconduct of one or more of the Indemnified Parties. defense costs shallnotexceedConsultant's proportionatepercentageoffault, exceptas setforthin section 2782. 8.
1. In the eventthat Consultantor any employee, agent, subconsultantor subcontractor of ConsultantprovidingservicesunderthisAgreementis determinedby a courtof competent jurisdiction or the California Public Employees retirement System (" PERS") to be eligible for enrollment in PEES as an employee of City, Consultantshall indemnify, defend, and hold harmlessCityfor the paymentof anyemployeeand/or employercontributionsfor PERSbeneffts on behalf of Consultant or its employees, agents, subconsultants or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
2. Thereview, acceptanceor approvalof theConsultant's Servicesorworkproductby any Indemnified Party shall not affect, relieve or reduce the Consultant`s Indemnification or defenseobligations. The provisionsof this Sectionare not limitedby and do notaffectthe provisions of this Agreement relating to insurance.
3. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This Indemnificationand hold harmlessclauseshallapplyto any damagesor claimsfor damageswhetherornotsuchinsurancepoliciesshallhavebeendeterminedtoapply.
4. ByexecutionofthisAgreement, Consultantacknowledgesandagreestotheprovisions ofthisSectionandthat: it isa materialelementofconsideration, andthattheseprovisionssurvive the termination of this Agreement.
17) Licenses. If a license of any kind, which term is intended to include evidence of registration, isrequiredof Consultant, itsemployees, agents, orsubcontractorsbyfederalorstate law, Consultantwarrantsthatsuchlicensehasbeenobtained, isvalidandingoadstanding, and Consultantshallkeepit in effectat all timesduringtheTermof thisAgreement, andthatany applicable bond has been posted in accordance with all applicable laws and regulations.
Consultant, itssubconsultants, andsubcontractors, willobtainandmaintaina Cityof SanPablo Business License at all times during the Term of this Agreement. 18) Employment Practices.
A. Employmentof LocalResidents. PursuanttotheSanPablo .EconomicOpportunity Policy, the Consultant and any subcontractors shall contact the San Pablo Economic Development Corporation (" EDC") at infoOsanpabloedc. org or 510- 215- 3200, at least tenbusinessdayspriortohiringor staffingforfulfillmentoftheAgreement, describing number, dutiesand qualificationsneededfor availablepositions, and shallfairly consider for employment any workers referred by the E©C within three business days.
Local Resident" meansan individualhavingan adjustedhouseholdincomeof less than the Area MedianIncomefor ContraCostaCounty, anddomiciledin the City of SanPabloas ofthe relevanthiringdate, with "domiciled" asdefinedby Section349(b) of the California Election Code. Discrimination against Local Residents on the basis of their local status is prohibited.
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B_ Compliance With Law. Consultant represents that it is an Equal Opportunity Employerand shall complywith applicableregulationsgoverningequal opportunity employment. Consultant shall not discriminate in the employment of any person becauseof race, color, nationalOrigin, ancestry, physicalor mentaldisability, medical condition, marital status, sex, age, unless based upon a bona fide occupational qualificationpursuanttotheCaliforniaFairEmploymentandHousingAct. Consultant shallcomplywithall applicableprovisionsof theAmericanswithDisabilitiesAct of 1990 (" ADA°) in performing its obligations under this Agreement. Failure to comply with the provisionsof the ADA shall be a material breach of, and groundsfor the immediate termination of, this Agreement. In performing Services and providing services under this Agreement, Consultant shall, at its sole cost and expense, comply with all applicable laws of the United States and the State of California, the Ordinances of the City of San Pablo; and the rules, regulations, orders, and directionsof their respective administrative agencies and the officers thereof. 19) Local Subcontracting — Outreach. Consultant shall contact the EDC at infb§ sanoabloedc.or or 510-215-3200) at least two weeks prior to any subcontract award, providingnoticeanddetailsregardingsubcontractingopportunity. TheEDCshallnotifyqualified localbusinessesof subcontractingopportunities, andprovidetechnicalassistanceto qualified local businesses during the subcontracting bidding process, 20) Termination.
A. Terminationfor Convenience. City may terminate this Agreement at its sole discretionat any time prior to expirationof the Term or completionby the Consultantof the Services required hereunder. Notice of termination of this Agreement shall be given in writing to the Consultant, and shall be sufficient and complete when same is deposited in the United States Mail, postageprepaidand certified, addressas set forth belowin Section (21), "Notices." The Agreement shall be terminated upon the date set forth in the City's Notice of Termination. If the Cityterminatesthis AgreementtheConsultantshallbecompensatedforall Servicessatisfactorily performedpriorto the time of receiptof cancellationnotice, and shall be compensatedfor materialsordered by the Consultantor its employees, or services of others ordered by the Consultant or its employees, prior to receipt of notice of cancellation whether or not such materials or final instruments of service of others have actually been delivered, provided that the Consultant or its employees are not able to cancel such orders for materials or services of others.
Compensation for the Consultant in the event of cancellation shall be determined by City in accordance with the percentage of Services completed and agreed to by the Consultant. in the event of cancellation, all notes, sketches, computations, drawings, and Specifications or other data, whether complete or not, remain the property of the City. The City may make copies or extract information from any such notes, sketches, computations, drawings, and specifications, or other data whether complete or not.
B. Termination for Cause. City may terminate this Agreement for cause by providing Consultantwith oneday's writtennoticeof suchterminationif Consultantviolatesanyoftheterms and conditionsof this Agreement. In City's discretionand at City's option, such terminationfor causemayaltemativeiybeaccomplished, whereConsultantfailsto performanyofthe obligations required of Consultant within the time and in the manner provided for under the terms of this Agreement, within seven days after receipt of the notice of such default. Upon City's termination of this Agreement for cause, City reserves the right to complete the Services by whatever means City deems expedientand the expenseof completingsuch Services, as well as any and all Updated: 04121 Page 11
damagesto the extentcausedbythe negligentacts, intentionalactsor errorsor omissionsof the Consultant, shall be charged to the Consultant.
C. Immediate Termination. City may terminatethis Agreementimmediatelyin any easewherethe Consultantengagesin fraudulentor criminalactivitieswhileperformingthe Services, or is otherwisedeterminedto lackthe necessaryskillsto accomplishthe desired objectives.
21) Ownership of Materials. Any and all documents, including draft documents where completeddocumentsare unavailable, or materialspreparedor causedto be preparedby Consultantpursuantto thisAgreementshallbethe propertyof theCityat themomentof their completedpreparation. Allmaterialsandrecordsof a preliminarynaturesuchassurveynotes, sketches, preliminary plans, computations and other data, prepared or obtained in the performanceof thisAgreement, shallbemadeavailable, uponrequest, to Cityat noadditional chargeand withoutrestrictionor limitationon their use consistentwith the intentof the original design.
22) Amendments. This Agreementmay be modifiedor amendedonly by a written documentexecutedbybothConsultantandCity's CityManagerandapprovedastoformbythe City Attorney. Suchdocumentshallexpresslystatethatit is intendedbythePartiesto amend the terms and conditions of this Agreement.
23) AbandonmentbyConsultant, Intheevent. theConsultantceasesperformingServices underthisAgreementor otherwiseabandonstheAgreementpriorto completingallofthe Services, Consultantshall, withoutdelay, deliverto Cityall materialsandrecordspreparedor obtainedin the performanceof this Agreement, and shall bepaidfor the reasonablevalueof the Servicesperformedup to the time of cessationor abandonment, less a deductionfor any damagesor additionalexpenseswhichCityincursas a resultof suchcessationor abandonment.
ConsultantagreestobefinanciallyresponsibleandtocompensateCityforanycostsincurredby CityinretainingtheservicesofanothertoreplaceConsultant, butonlytotheextentthatthecosts ofretainingthereplacementexceedwhatremainingamountswouldhavebeenpaidtoConsultant under the Agreement had Consultant completed the Services. 24) Waiver. Thewaiverby eitherPartyof a breachbytheotherof anyprovisionof this Agreementshallnotconstitutea continuingwaiveror awaiverof anysubsequentbreachof either the same or a different provision of this Agreement.
26) No Third - Party Rights. The Parties do not intend to create rights in, or to grant remediesto, anythirdpartyasa beneficiaryofthis Agreementorofanyduty, covenant, obligation, or undertaking established herein.
26) Se erability. Shouldanypartof thisAgreementhe declaredbya finaldecisionbya courtortribunalofcompetentjurisdictionto beunconstitutional, invalid, or beyondtheauthority ofeitherPartytoenterintoorcarryout, suchdecisionshallnotaffectthevalidityoftheremainder of thisAgreement, which shallcontinueinfull force andeffect, providedthatthe remainderof this Agreement, absentthe unexcisedportion, canbe reasonablyinterpretedto giveeffectto the intentions of the Parties,
27) Compliance with Laws. In the performance of this Agreement, Consultant shall abide by and conformto any and all applicablelawsof the UnitedStates, the Stateof California, and City ordinances. Consultant warrants that all Services done under this Agreement will be in Updated: 04f21 Page 12
compliancewithallapplicablesafetyrules, laws, statutesandpractices, includingbutnotlimited to CaVOSHA regulations.
28) Controlling Law and Venue. This Agreement and all matters relating to it shall be governedby thelawsof theStateof California, andvenuefor anylegalactionarisingfromor relatingto this Agreementwill be in the SuperiorCourt of ContraCosta County, and no other place. Consultantherebywaivestheremovalprovisionsof CodeofCivilProceduresection394. 29) Breach. In the event that Consultant fails to perform any of the Services described in this Agreement or otherwise breaches the Agreement, City shall have the right to pursue all remediesprovidedbylawandequity. NeitherpaymentbytheCitynorperformancebyConsultant shall be construedas a waiverof either Party's rights or remediesagainstthe other. Failureto requirefull and timely performanceof any provision, at any time, shall not waive or reducethe rightto insistuponcompleteandtimelyperformanceof suchprovisionthereafter. Inthe eventof any suit, actionor proceedingbroughtby eitherPartyfor breachof anyterm hereofor to enforce any provisionhereof, the prevailingparty shall be entitledto recoverits reasonableattomey's fees.
30) Inspection by tither Agencies. Authorized representatives of the Federal Government, the California department of Transportation, or other government agencies which providegrantfunding (ifany) forthisAgreementandtheCityhavetherighttoinspectConsultant's performanceof the Services, files, andwork product.
31) Conflict of Interest. Consultant warrants and covenants that Consultant presently has no interestin, nor shall any interest be acquiredin, any matter whichwill renderthe services requiredundertheprovisionsofthisAgreementaviolationof anyapplicablestate, local, orfederal law. Inthe eventthat anyconflictof interestshouldneverthelessarise, Consultantshall promptly notifyCityoftheexistenceof suchconflictof interestsothattheCitymaydeterminewhetherto terminate this Agreement. Consultant further warrants its compliance with the Political Reform Act ( Gov. Code section 81000 et seq.) respecting this Agreement. Where City Manager determines, basedon facts providedby City staff, that Consultantmeetsthe criteria of section 18701 of the FPPC regulations, the individual providing services under this Agreement shall be considereda designatedemployee' under the City's conflict of Interest code, and shall be required to complete FPPC Form 700 regarding his or her economic interests in a timely manner. 32) Copyright, UponCity's request, Consultantshall executeappropriatedocumentsto assignto the City the copyrightto work createdpursuantto this Agreement. The issuanceof a patent or copyright to Consultant or any other person shall not affect City's rights to the materials and recordspreparedor obtainedin the performanceof this Agreement. City reservesa license to use such materials and records without restriction or limitation consistent with the intent of the originaldesign, andCityshallnotberequiredto payanyadditionalfeeor royaltyfor suchmaterials or records. The license reserved by City shall continue for a period of fifty years from the Effective ate unless extended by operation of law or otherwise.
33) Whole Agreement. This Agreement constitutes the entire understanding and agreementof the parties. This Agreementintegratesall of the termsand conditionsmentioned herein or incidental hereto and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. 34) Multiple Copies of A reement, Multiple copies of this Agreement may be executed butthepartiesagreethattheAgreementonfileintheofficeoftheCityClerkistheversionofthe Updateck 04121 Page 13
Agreementthat ,shalltapeprecedenceshouldanydifferencesexistamongcounterpartsof the document.
36) Notices. Noticesrequiredby this Agreementshall be personallydeliveredor mailed, postage prepaid, as follows,
To Consultant: R. Brent Lemon P. E., Regional Manager
Quincy Engineering, inc,
2950 Buskirk Avenue # 122
Walnut Creels, CA 94597
To the City City Manager, City of San Pablo
San Pablo City Hall
1000 Gateway Avenue
Sara Pablo, CA 94806
EachPartyshallprovidethe otherPartywithtelephoneandwrittennoticeof anychangein addressassoonaspracticable. Noticesgivenbypersonaldeliveryshallbeeffectiveimmediately.
Noticesgivenbymailshallbedeemedtohavebeendeliveredforay --eighthoursafterhavingbeen deposited in the United States mail.
36) Federal Funding Requirements ( if applicable). If this Agreement is subject to federal funding, inwholeorinpart, itmustcomplywiththeuniformfederalawardprocurement requirements set forth in 2 CFR §§ 200. 318 200.327, .as may be amended trorn time to time, and contain the applicable provisions described in Appendix fl to Part 200 — Contract Provisions for non -FederalEntityContractsUnderFederalAwards, whichareattachedto thisAgreement as ExhibitC. In the eventof a conflictor inconsistencybetweenExhibitC. ExhibitD, if applicable, and this Agreement, Exhibit C will control. 2 ThisAgreementis subjectto federalfunding. SeeExhibitC, ThisAgreementis notsubjectto federalfunding.
37) Caltrans Funding lie uirements if a llicable . If this Agreement is for architectural and/orengineeringservicessubjectto reimbursementorfunding, inwholeorinpart, by Caltrans and administered under the Local Assistance Procedures Manual ("LAPM" ), it must includethe previsionsset forth in ExhibitD, MandatoryFiscaland FederalProvisionsfor ArchitecturalandEngineeringConsultantContractsSubjecttoCa/trans. Funding. Intheeventof any conflict or inconsistency between Exhibit D and this Agreement, .Exhibit D will control. 2 ThisAgreementis subjectto fundingby Caltrans. See ExhibitC.
ThisAgreementis notsubjectto fundingby Caltrans.
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IN WITNESS WHEREOF, Consultant has executed this Agreement, and the City, by its City Manager, who is authorized to do so, has executed this Agreement, APPROVED AS TO FORM:
By
Tracy Nerlaft City Attomey
ATTEST:
CITY OF SAN PABLO
A Municipal Corporation
Matt Rodkguez, City Manager
QUINCY ENGINEERING, INC.
By - r- -OW-dk- i --
R. Brent Lemon, P. E., Regional Manager
By *---
z- Dated May 26, 2021
Dorothf Gantt, CityCler
Attachments: Exhibit A: Request for Proposals, dated January 7, 2021 Exhibit B: Consultant' s Proposal, dated March 11, 2021 Exhibit C; Federal Contract Provisions
Exhibit D, Mandatory Fiscal and Federal Provisions for Architectural and Engineering Consultant Contracts Subject to Caltrans Funding R: CIPi PW ACTIVE PROJECTSt0700Rumrill Complete Streets113Service ContractslAGR Quincy Consultant Services Agreement. docx
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