City of Santa Paula
City Council
MAYOR ANDY SOBEL
VICE MAYOR LESLIE CORNEJO
COUNCILMEMBER JENNY CROSSWHITE
COUNCILMEMBER CARLOS JUAREZ
COUNCILMEMBER PEDRO A. CHAVEZ
CITY COUNCIL REGULAR MEETING OF THE
SANTA PAULA CITY COUNCIL
WEDNESDAY, OCTOBER 18, 2023
6:30 PM - City Council Regular Meeting
SANTA PAULA CITY HALL
970 VENTURA STREET
SANTA PAULA, CA 93060
JULIE LATSHAW, CITY CLERK
DAN SINGER, CITY MANAGER
MONICA CASTILLO, INTERIM CITY ATTORNEY
City of Santa Paula - City Council - City Council Regular Meeting 1
BRINGING ITEMS BEFORE THE CITY COUNCIL
You are invited to participate in all Regular City Council meetings. Agendas are posted in the front of Santa Paula City Hall, 970 Ventura Street, Santa Paula, 72 hours in advance of the scheduled meetings. The City Council's regular meetings start at 6:30 p.m. the first and third Wednesday of each month in the City Hall Council Chambers located at 970 Ventura Street in Santa Paula.
HOW TO PARTICIPATE IN PERSON DURING THE MEETING: If you wish to speak at a City Council meeting, please fill out a Public Comment Form noting your name and address and submit the form to the City Clerk. Include the Agenda item number, when appropriate. Public comments are limited to 3 minutes.
1. Items Not on the Agenda: If you wish to discuss an item which is not scheduled on the Agenda, you may address the City Council during Public Comment. Please realize that due to the limitations placed on the City Council by provisions of the California Government Code, the City Council ordinarily cannot take action on any item that is not on the agenda. Because of these restrictions, expect that matters that you identify during public comment may be referred to staff or considered on a future agenda.
2. Agenda Items: Items being considered by the City Council may appear on the Consent Calendar, as an Action Item, or as a Public Hearing. Public comments on each type of item are handled differently, as explained below:
a. For items appearing on the Consent Calendar, please submit a Public Comment Form before the Council takes action on the Consent Calendar. Items that receive a Public Comment Form may be pulled from the Consent Calendar by the Mayor and discussed separately by the City Council.
b. For items appearing as an Action Item, the Mayor will announce the Agenda item and request the staff report, the staff member responsible will give a brief summary of the report; the City Council will have an opportunity to ask questions of staff; members of the public will be given an opportunity to comment on the item and ask additional questions (all members of the public should speak directly into the microphone at the speaker’s platform); and the City Council will discuss the item and then take appropriate action.
c. For items on which a Public Hearing is scheduled, the Mayor will open the public hearing and receive the staff report; members of the public will be given an opportunity to comment on the item and ask additional questions (all members of the public should speak directly into the microphone at the speaker’s platform); the City Council will discuss the item; and the Mayor will close the public hearing after City Council action.
HOW TO PARTICIPATE BEFORE THE MEETING: Members of the public are encouraged to submit email correspondence on any agenda item by sending an email to [email protected]. All public correspondence received by 3:00 p.m. (PT) on the meeting date will be provided to the legislative body before the meeting. Public Comments received after 3:00 p.m. will be provided to the legislative body the next day.
Your Participation in this meeting is in the public domain; meetings are cablecast; minutes of this meeting will reflect your participation in this meeting and are posted on the city’s website.
PLEASE NOTE: Be advised that if you bring a legal challenge to an action, you may be limited to raising only those issues you or someone else raised at the meeting described in this Agenda, or in written correspondence delivered to the City Council at or before the meeting.
Any action is subject to the ninety-day time period set forth in Code of Civil Procedure § 1094.6.
City of Santa Paula - City Council - City Council Regular Meeting 2
1. CALL TO ORDER
REMINDER: in order to minimize distractions during public meetings, all personal communication devices should be turned off or put in a non-audible mode.
2. INVOCATION
3. FLAG SALUTE
4. ROLL CALL
5. CLOSED SESSION REPORT
6. PUBLIC COMMENT
At this time, members of the public may comment on any item not appearing on the agenda that is within the subject-matter jurisdiction of the City Council. A Public Comment Form must be submitted to the City Clerk prior to the beginning of the Public Comment period in order to be recognized to speak. Individuals submitting Public Comment Forms after the beginning of the Public Comment period will not be allowed to speak at this time, but may be recognized to speak by the Mayor at the conclusion of the meeting. Individual Councilmembers may briefly respond to Public Comments or ask questions for clarification. The City Council may direct staff to report to the City Council on the item at a later meeting. For items appearing on the Agenda, the public will be invited to make comments at the time the item comes up for City Council consideration. If a member of the public wishes to address a Consent Calendar item, please submit a Public Comment Form for that item. It may then be discussed separately by the Council, and the public will be invited to make comments at that time. At all times, please use the microphone and write your name and address on the Public Comment Form provided.
7. PRESENTATIONS
7.A COMMUNITY AND ECONOMIC DEVELOPMENT DEPARTMENT
QUARTERLY REPORT (APRIL - SEPTEMBER 2023)
RECOMMENDATION:
That the City Council receive and file the report.
8. CITY COUNCIL REPORTS
9. CITY MANAGER REPORTS
10. CONSENT CALENDAR
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk at (805) 933-4208. Notification 48 hours before the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 35, 102-35.104 ADA Title II). Written materials distributed to the City Council within 72 hours of the City Council meeting are available for public inspection immediately upon distribution in the City Clerk’s office.
REGULAR MATTERS - COUNCIL CHAMBERS
City of Santa Paula - City Council - City Council Regular Meeting 3 Background information has been provided to the City Council on all matters listed under the Consent Calendar and these items are considered to be routine by the City Council and are normally approved by one motion. If discussion is requested by a Councilmember on any item, or a member of the public wishes to comment on an item, that item may be removed from the Consent Calendar for separate action.
10.A APPROVAL OF MINUTES
RECOMMENDATION:
Staff recommends Council approve the following minutes:
City Council Special Minutes for September 9, 2023
City Council Regular Minutes for September 9, 2023
City Council Special Minutes for September 19, 2023
City Council Special Minutes for October 4, 2023
City Council Regular Minutes for October 4, 2023
City Council Special Minutes for October 9, 2023
10.B AUGUST 2023 WARRANTS AND CERTIFICATIONS
RECOMMENDATION:
Staff recommends that the City Council:
1. Review and accept the "Certification of Accounts Payable" for the accounts payable payment cycles for August 2023, starting check number 334906 and ending check number 335169.
2. Review and accept the "Certification of Salaries" for the pay period ending dates July 28th, 2023 through August 11th, 2023.
10.C SEPTEMBER 2023 WARRANTS AND CERTIFICATIONS
RECOMMENDATION:
Staff recommends that the City Council:
1. Review and accept the "Certification of Accounts Payable" for the accounts payable payment cycles for September 2023, starting check number 335170 and ending check number 335384.
2. Review and accept the "Certification of Salaries" for the pay period ending dates August 25th, 2023 through September 22nd, 2023.
10.D INVESTMENT POLICY UPDATE
RECOMMENDATION:
Staff recommends the City Council approve the proposed Investment Policy updates to be in line with industry standards.
10.E TRANSPORTATION DEVELOPMENT ACT, LOCAL
TRANSPORTATIONFUND, APPORTIONMENT FOR FISCAL YEAR
2023/2024
RECOMMENDATION:
Staff recommends that the City Council:
Adopt Resolution No. 7486 authorizing the submittal of claims for allocation of FY 23/24Transportation Development Act (TDA) funds.
City of Santa Paula - City Council - City Council Regular Meeting 4
10.F UPDATED MANUAL OF PROCEDURAL GUIDELINES FOR THE
CONDUCT OF CITY COUNCIL AND CONSTITUENT BODY/COMMISSION
MEETINGS FOR THE CITY OF SANTA PAULA
RECOMMENDATION:
Staff recommends that the City Council:
1. Adopt Resolution No. 7484 approving the "Manual of Procedural Guidelines for the Conduct of City Council and Constituent Body/Commission Meetings for the City of Santa Paula.”
10.G ON-CALL AGREEMENTS FOR PROFESSIONAL CONSULTING SERVICES RECOMMENDATION:
Staff recommends that the City Council:
1. Authorize the City Manager to execute a three-year professional services agreement with each shortlisted, prequalified firm to provide oncall professional consulting services for FY 2023-2026, namely (1) Earth Systems Pacific; (2) Huitt Zollars, Inc.; (3) Jensen Design & Surveying, Inc.; (4) Overland, Pacific, & Cutler, LLC; (5) Pacific Coast Land Design, Inc.; (6) Water Systems Consulting, Inc.; (7) RMA Group; (8) Solved Engineering, Inc.; and (9) Union Materials Testing, Inc.
2. Authorize the City Manager or his designee to issue professional consulting services task orders in an amount not to exceed the adopted fiscal year budget or in the annual aggregate of $250,000 per consultant, whichever is less.
10.H ON-CALL SERVICE AGREEMENTS FOR CITYWIDE STREET
MAINTENANCE SERVICES
RECOMMENDATION:
Staff recommends that the City Council:
1. Authorize the City Manager to execute three (3), three-year on-call services agreements with Toro Enterprises, Inc., J & H Engineering General Contractors, Inc., and BSN Construction, Inc., for Citywide Street Maintenance services for FY 2023-2026.
2. Authorize the City Manager or his designee to issue street repair and maintenance services work orders on a time and material basis in an aggregate amount not to exceed the adopted fiscal year budget or $250,000 per fiscal year, whichever is less.
10.I ON-CALL SERVICES AGREEMENT FOR CITYWIDE TRAFFIC SIGNAL
MAINTENANCE SERVICES
RECOMMENDATION:
Staff recommends that the City Council:
1. Authorize the City Manager to execute a three-year on-call services agreement with Yunex LLC for Citywide Traffic Signal Maintenance services.
2. Authorize the City Manager or his designee to issue traffic signal repair City of Santa Paula - City Council - City Council Regular Meeting 5 and maintenance services work orders on a time and material basis in an aggregate amount not to exceed the adopted fiscal year budget or $250,000 per fiscal year, whichever is less.
11. ACTION ITEMS
11.A UNION OIL BUILDING TRANSFER AGREEMENT
RECOMMENDATION:
Adopt Resolution No. 7488 to:
1. Authorize the City Manager to execute the proposed Transfer Agreement to acquire the Union Oil Building property, and all documents necessary to carry out the Transfer Agreement; and
2. Authorize acceptance of the property pursuant to Government Code Section 27281.
Presented by: Monica Castillo, Interim City Attorney
11.B FLAG DISPLAY POLICY
RECOMMENDATION:
Staff recommends that the City Council discuss amending the Flag Display Policy and, if amendments are requested, direct staff to return with an adopting resolution at a future meeting.
Presented by: Monica Castillo, Interim City Attorney
11.C FISCAL REVIEW: FY 22/23 YEAR END AND FY 23/24 Q1
RECOMMENDATION:
Staff recommends that the City Council receive and file the fiscal year end report. Staff will return to Council on November 1st with budget adjustment recommendations.
Presented by: Christy Ramirez, Finance Director
11.D TRAVEL POLICY UPDATE
RECOMMENDATION:
Staff recommends the Council adopt Resolution 7487, adopting a revised travel expense reimbursement policy established by Resolution No. 6258 on February 6, 2006.
Presented by: Christy Ramirez, Finance Director
12. ITEMS FOR FUTURE AGENDAS
12.A FUTURE AGENDA ITEMS
RECOMMENDATION:
Staff recommends City Council review future agenda items.
13. ADJOURNMENT
City of Santa Paula - City Council - City Council Regular Meeting 6 State of California )-
County of Ventura )- ss
City of Santa Paula )-
I declare under penalty of perjury that I posted this City Council Agenda on the bulletin board near the front door of City Hall, 970 Ventura Street, Santa Paula, California.
On_________________ at______________Signed:_________________________ Julie Latshaw
City Clerk
City of Santa Paula - City Council - City Council Regular Meeting 7 To: Honorable Mayor and Members of the City Council
From: James Mason, Community & Economic Development Director Subject: COMMUNITY AND ECONOMIC DEVELOPMENT DEPARTMENT
QUARTERLY REPORT (APRIL - SEPTEMBER 2023)
Date: October 18, 2023
Agenda Item: 7.A
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
That the City Council receive and file the report.
BACKGROUND:
STAFF UPDATES
The department is coordinating with Human Resources to recruit and fill the following funded positions by first quarter 2024:
Administrative Analyst
Management Analyst – Housing
Building Inspector I
Code Inspector
Assistant Planner
Associate Planner
Community Development Technician
PLANNING DIVISION
2021-2029 Housing Element Update
City Council adopted the revised Housing Element in May 2022 and staff resubmitted to the State Housing and Community Development Department (HCD). Planning received additional comments from HCD since the adoption and first submittal of the element, there have been three subsequent resubmittals. The main issues with delays relate to three factors:
Similar to multiple cities throughout the state, requested an unprecedented level of detail.
Many of the comments also clearly showed that HCD simply overlooked the corrections made in the resubmittal.
In each resubmittal, HCD has required compliance with new legislation or department opinions that have surfaced since the previous drafts.
There has been lack of continuity in personnel assigned to the review of our documents. 8 The last formal submittal was sent to HCD in April 2023, and Planning did not receive comments until the end of June. Staff, with the assistance of our consultant JHD Associates, made additional revisions in response to these comments and sent them to HCD on July 7th, with request for feedback. HCD did not provide this feedback until August 31st. Staff is currently preparing to submit the fifth draft, and we have contacted Assemblymember Steve Bennett’s office as well as the Santa Paula Affordable Housing Task Force to coordinate their involvement in our next phone call with HCD prior to submittal in hope of clarifying their concerns and finalizing the Housing Element.
The next steps following HCD’s approval will be ratification by Planning Commission and City Council.
PLANNING COMMISSION ACTIVITY (APRIL-SEPTEMBER)
April 25, 2023 PC Meeting: Cancelled
May 23, 2023 PC Meeting:
Adopted Resolution No. 3848 approving Conditional Use Permit No. 2023-CUP-01 to allow Dee Thai Cuisine restaurant (592 W. Main Street – Vons shopping Center) the right to sell alcohol in compliance with the CA ABC Type 41 license provisions, subject to the conditions of approval.
Adopted Resolution No. 3849 recommending the City Council adopt an ordinance amending SPMC Chapter 16.21 to include language restricting barbed wire and razoredged wire use in fencing materials; and found the Ordinance exempt from CEQA.
June 27, 2023 PC Meeting:
Adopted Resolution No. 3850 recommending the City Council approve Tentative Map No. 6070 for the Red Tail / Arrive Santa Paula apartments project. TM6070 is a subdivision of their existing parcel at 18004 East Telegraph Road into two parcels that would allow for the development of 298 new apartment units (166 affordable units on Parcel 1 & 132 market-rate units on Parcel 2), subject to the project's conditions of approval.
Documented conformance of the 2023-2025 Public Works Capital Improvement Program with the 2040 City of Santa Paula General Plan.
July 25, 2023 PC Meeting: Cancelled
August 22, 2023 PC Meeting:
Adopted Resolution No. 3851 recommending the City Council approve an ordinance amending Chapters 16.05, 16.15, and 16.58 of the Santa Paula Municipal Code amending Sections 16.05.200 definitions “s” and 16.15.020 Development Standards and use conditions and adding Section 16.58.015 additional requirements for Small-Scale Alcohol Producers. (To summarize, such an ordinance would amend the City’s zoning code to establish a framework to accommodate small-scale microbrewery, distillery, winery, seltzer, meadery, or cidery, which engages in production of alcoholic beverages, including a review of best practices. This new framework would allow for these types of emerging businesses and related uses in a greater range of zones than was permitted under the previous code language, which only allows for large-scale alcohol production 9 in Industrial land-use designations.)
September 27, 2023 PC Meeting: Cancelled
Two Planning Commissioners (Auger & Kelly) were reappointed at the September 6, 2023 City Council meeting to full four-year terms, expiring September 2027.
SPECIFIC PLAN UPDATES
Santa Paula West Business Park Specific Plan (SP-6)
The Project is within the West Area 2 Expansion Area as designated by the Santa Paula General Plan on the western edge of the City of Santa Paula and consists of ±54 acres of the 125-acre Expansion Area. The land uses envisioned within the Specific Plan will be a mix of low-intensity industrial (such as light manufacturing or research and development), professional offices, and supporting commercial businesses.
The applicant’s contracted engineer and environmental consultant have amending the environmental reports, the application, and the Specific Plan based on modification required by the County Watershed Protection District. Staff is currently reviewing the updated Specific Plan, Tentative Map and supporting reports and plans to take the amendments to the Planning Commission in October and it will be scheduled for Council review and approval in November.
Our goal will be to bring the final documents and application to the Local Area Formation Commission (LAFCo) first quarter 2024.
East Area Specific Plan - Harvest Development
Approved project includes 1,500 new dwelling units of different types on approximately 500- acres. Construction continues on residential units and the first phase of development (586 units) is nearing completion. The project submittal for Phase II is under review and the tentative tract map was approved by City Council. The Santa Paula Creek bridge plans are being prepared for review by the city and initial submittals have been approved by the Army Corp of Engineers and county watershed protection (estimated completion spring 2025).
Phase I of the Sports Park is nearly completed with transfer of the park from the developer over to the City planned for the 4
th quarter 2023. Negotiations for an amended development agreement are underway to address Lewis’ plans to add an additional 550 homes.
East Gateway Specific Plan
Staff is reviewing the concept plans and layout for the medical facility at the southeast corner of Hallock Road and SR-126. The mix of uses that will include medical offices and a hospital with the possibility of including senior care facilities, an outpatient surgical center, and retail.
The developer is currently reviewing options with staff for amendments to the Area Specific
COMMERCIAL DEVELOPMENT UPDATES
Gun Smoke BBQ (817 E Main St): Restaurant
Proposal for a new Santa Fe style BBQ restaurant. Site development work is nearly completed. The sign permits and business license have been issued for the project and final improvements are underway. The opening date is planned 4 th quarter 2023.
10 La Terraza (1080 E. Main Street): Banquet Hall
Proposal for a new 6,672-sf multi-venue event space adjacent to La Terraza Restaurant. A new Conditional Use Permit was approved by the Planning Commission on January 26, 2022.
The project building plans are ready for permitting and building improvements are underway.
Good Orchard Event Center and Café (133 Mill Street)
The initial project (Wesley Hall repurpose/renovation) which includes a catering and event center, café and alcohol license is nearing completion of plan review. The project site will be phased to include the future redevelopment of another existing onsite structure (Faulkner Hall) into apartments. Plans are under review for the two projects and staff continues to closely engage with the developer regarding these phases and the potential to turn the existing church on the project site into an arts and event space.
Parque 1055 Bar and Grill (1055 East Main Street)
Building permits were provided to the developer on October 5, 2023 and site improvements are underway. The project is composed of the redevelopment of an auto parts and repair facility into a tap room, wine bar, restaurant and grill.
Full Scale Custom Hot Rods 1117- 1119 E. Main Street
The business is a new locate from Ventura who specialized in high-end car customization and restoration. Their Conditional Use Permit will be review by the Planning Commission on October 24
th.
East Area Gateway (Hallock/126/Telegraph)
On a 120,000 square foot commercial center which will include grocery, in-line retail and multiple restaurant pads. Staff is working with developer to create a site that promotes walkability, connection, and cohesion of amenities and services.
INDUSTRIAL DEVELOPMENT UPDATE
Santa Maria Industrial Park (324 W. Santa Maria Street): Industrial Park Project approved by Planning Commission in 2012. City staff continuing to coordinate with applicants to complete project. A conservation easement violation has been resolved and the project is continuing with requisite design and engineering submittals. The review of the Conditional Letter of Map Revision (CLOMR) which addresses project potential alterations to flood hydrology, has been completed by the county watershed protection district and the city and will be submitted to FEMA for approval of the final Letter of Map Revision (LOMAR).
Vertical construction will be contingent of the FEMA approval which is expected early 2024.
Santa Paula Self Storage Too (324 E Santa Maria St): Self Storage Facility Proposal for a 5-building, 262-unit self-storage facility. Plans have been submitted and site grading and utility work is underway. The project will commence development once the underlying Santa Maria Industrial Park project has received FEMA approval. 11 ActionPac (270 Quail Court/1574 Lemonwood Drive)
The packaging equipment manufacturer, a relocated from Oxnard, is working on development plans to add additional buildings and tenants on the 5-acre site.
Bender Property (Todd Rd and SR 126)
The developer, Bender Farms, is currently planning an additional 76,000 square foot industrial shell building and has approved plans for the development of the site. As a part of the project, improvements will be made to Todd Rd, Calpipe Rd. and Peck Rd.
RESIDENTIAL DEVELOPMENT UPDATE
Santa Paula Public Benefit Housing/First-Time Home buyer Program Ventura County Community Development Corporation (VCCDC) has been selected for the administration of the program and staff will request budget appropriation from the Council. City staff and the VCCDC have conducted an orientation with the sales team at Harvest and are currently collaborating on marketing materials and program promotion. All existing homes have been sold and the program promotion and implementation will commence with Phase 1d (former school site) and phase 2 (Foothill) of the Harvest development.
People’s Self-Help Housing (PSHH) 714 W Harvard Blvd
Construction of the 6 deed-restricted affordable housing development which broke ground in May 2022 is well underway with completion expected late in the 1 st quarter of 2024.
Former Kmart (859 Faulkner Rd.)
Harridge Development Group, LLC., the owner and developer for the site has submitted a preliminary plan for 240 market-rate apartment town-homes with an affordable component.
Environmental review has been completed for the project. Staff is working with the developer to resolve civil engineering and traffic concerns. Plan submittal is expected first quarter 2024. 11th Street Town homes
Ten market rate town homes on Main Street and 11th Street. Design review has been completed and the project plans are currently under review.
King Building Apartments (929 East Main Street)
Six second-floor, market-rate apartment units above ground-floor retail. Project plan review is complete. Staff is awaiting word from developer on construction start date, which may be on hold due to the developers’ investment in several other major development projects in the county.
Red Tail Apartments (18004 East Telegraph Rd)
298-unit apartment complex at East Telegraph Rd. and Whipple Rd. - 162 affordable units (40 Very-Low and 122 Low) along with 136 market-rate units The project will contribute significantly to the city’s progress toward satisfying SCAG 6 th Cycle (regional Housing Needs
12 Assessment) RHNA requirements. The project received approval of Affordable Housing Plan to pair with by-right zoning entitlement at the January 24 th Planning Commission meeting. The
developer has submitted their tentative tract map and is currently negotiating with staff on development assistance strategies.
Mixed-Use/Senior Living (603 East Main Street)
Mixed use senior living and commercial project composed of ~6,800 square feet of commercial and 27 senior apartments. The developer is working with the Housing Authority on connecting potential tenants through their section-eight waiting list.
Harvest at Limoneira (East Area 1)
All 586 lots for Phase I of the project have been sold to home builders and 585 homes are occupied. Due to high interest rates the developer has been focusing on infrastructure and site preparation and is working to negotiate with builders purchase of future phases. Of the 121 units available in Phase 1d 50 have been sold and the developer is projecting construction to begin by the 2
nd quarter 2024. In addition, Limoneira-Lewiis Community Builders (LLCB) has plans to develop a 298-unit duplex apartment project directly south of the Sports Park.
Spirit of Santa Paula (1498 E. Harvard Blvd.) Homeless Services Center Development improvements and operational permit for a homeless service center. The project is near completion and Building & Safety staff has been coordinating with the Ventura County Fire Department to finalize the final components of the development.
New Business Licenses
21 new business licenses and 22 Home Business Occupations were issued April – September 2023
Development Applications
4 new development applications were received April - September 2023.
Planning Applications
24 new planning applications were received April - September 2023.
BUILDING AND SAFETY DIVISION
Permit and Fee Activity
April – September 2023
Number Permit Fees
PERMITS 2023 2022 2023 2022
BUILDING 152 276 $70,683.15 $268,133.89
PLUMBING 42 96 $6,380.00 $20,195.00
13 ELECTRICAL 158 165 $15,784.00 $28,739.00
MECHANICAL 26 98 $2,962.00 $18,104.00
TOTAL 378 635 $95,809.15 $335,171.89
Total permit valuation to date (2023 total): $6,128,826.77 Total permit valuation prior year (2022 total): $44,980,464.00.
CODE COMPLIANCE DIVISION
There is currently a total of 103 active code compliance cases.
Recruitment is currently underway for a Code Inspector.
ECONOMIC DEVELOPMENT
Staff continues to regularly dialogue with commercial and industrial real estate brokers and land owners to look for opportunities to connect businesses with available properties and expand options for employment growth.
Staff continues to participate in business round-table meetings, Property Business Improvement District (PBID) coordination and face-to-face meetings with businesses.
OTHER ACTIVITIES
Development Services Process and Program Audit – Citygate Associates The consultant conducted staff, City council and applicant interviews on October 5 and 6 and is currently preparing a community survey which will be available in English and Spanish. In coming weeks we will be discussing department operations with an outcome focused on program and process improvement that will address customer service, technology, metrics and inter departmental and inter-agency collaboration. Way-finding Project – Hunt Design The consultant conducted a tour of the city and is in the process of developing a methodology for way-finding signage that meets the needs of the community. They are currently gathering base maps, parking information, city branding information, a comprehensive list of destinations within the community and will have preliminary concepts for review in late 2023. 1435 East Harvard Boulevard Land Purchase
Staff has completed negotiations and following the City Council approval of the contract earnest money has been provided to seller and the property will go into escrow within the next ten days.
The final purchase price was $550,000 which will utilize Affordable Housing Trust Funds, which can only be used for the purchase, development, rehabilitation or stabilization of affordable housing. The intent in purchasing the property is to provide an opportunity to either develop transitional housing on the site or leverage the property for sale, or exchange to 14 develop opportunities for transitional housing or affordable housing resources.
ANALYSIS:
None
STRATEGIC PLAN:
None
FISCAL IMPACTS:
None
OPTIONS:
None
ATTACHMENTS:
15 To: Honorable Mayor and Members of the City Council
From: Julie Latshaw, City Clerk
Subject: APPROVAL OF MINUTES
Date: October 18, 2023
Agenda Item: 10.A
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends Council approve the following minutes:
City Council Special Minutes for September 9, 2023
City Council Regular Minutes for September 9, 2023
City Council Special Minutes for September 19, 2023
City Council Special Minutes for October 4, 2023
City Council Regular Minutes for October 4, 2023
City Council Special Minutes for October 9, 2023
BACKGROUND:
An account of all proceedings of the Legislative Body in open meetings shall be kept by the Clerk/Secretary. The Clerk/Secretary shall prepare an abbreviated record of the meeting proceedings for approval by the Legislative Body which when adopted by the Legislative Body shall be the official Minutes of the meeting. Amendment of the minutes may be made only as to factual accuracy and not as to a change of intent. The Minutes of the meeting need not be verbatim. Only the best and most complete available recording of the meeting shall constitute the official record of the Legislative Body, but the Minutes shall constitute the official record of the Legislative Body meeting where a verbatim record of the meeting is not available. Unless requested by a majority of the quorum, the minutes may be approved without reading.
ANALYSIS:
None.
STRATEGIC PLAN:
This item is not a goal or objective in the City Council's two-year Strategic Plan, however, the Minutes shall constitute the official record of the Legislative Body.
FISCAL IMPACTS:
There are no fiscal impacts for this item.
16 OPTIONS:
ATTACHMENTS:
2023.09.06 City Council Special Minutes.pdf
2023.09.06 City Council Regular Minutes.pdf
2023.09.19 City Council Special Minutes.pdf
2023.10.04 City Council Special Minutes.pdf
2023.10.04 City Council Regular Minutes.pdf
2023.10.09 City Council Special Minutes.pdf
17 CITY OF SANTA PAULA
City Council Special Meeting
September 6, 2023, 5:00 PM
MINUTES
SPECIAL MEETING - COUNCIL CHAMBERS
1) CALL TO ORDER
Mayor Sobel called the meeting to order at 5:00 p.m.
2) ROLL CALL
Members Present: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, and Pedro A Chavez
3) PUBLIC COMMENT
None.
4) CITY BUSINESS
4.A) PARKS AND RECREATION COMMISSION YOUTH INTERVIEW
Council interviewed Lupita Cisneros for the Parks and Recreation Commission Youth opening.
5) CLOSED SESSION
5.A) CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE § 54956.8
PROPERTY: 1435 EAST HARVARD (0.55 ACRES)
VENTURA COUNTY APN: 101026014
AGENCY NEGOTIATOR: JAMES MASON, COMMUNITY AND
ECONOMIC DEVELOPMENT DIRECTOR
NEGOTIATING PARTIES: CITY OF SANTA PAULA AND BUCK DREW
UNDER NEGOTIATION: PRICE AND TERMS OF PAYMENT
Council recessed to closed session.
6) CLOSED SESSION REPORT
18 Interim City Attorney Monica Castillo reported there was no reportable action taken.
7) ADJOURNMENT
Mayor Sobel adjourned the meeting at 6:25 p.m.
Julie Latshaw, City Clerk
ATTEST:
19 CITY OF SANTA PAULA
City Council Regular Meeting
September 6, 2023, 6:30 PM
MINUTES
REGULAR MATTERS - COUNCIL CHAMBERS
1) CALL TO ORDER
Mayor Sobel called the meeting to order at 6:30 p.m.
2) INVOCATION
Deacon Al Guilin provided the Invocation.
3) FLAG SALUTE
Councilmember Leslie Cornejo led the flag salute.
4) ROLL CALL
Members Present: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, and Pedro A Chavez
5) CLOSED SESSION REPORT
Interim City Attorney Monica Castillo reported there was no reportable actions taken on the following:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO
GOVERNMENT CODE § 54956.8 PROPERTY: 1435 EAST HARVARD (0.55 ACRES) VENTURA COUNTY APN: 101026014 AGENCY NEGOTIATOR:
JAMES MASON, COMMUNITY AND ECONOMIC DEVELOPMENT
DIRECTOR NEGOTIATING PARTIES: CITY OF SANTA PAULA AND BUCK DREW UNDER NEGOTIATION: PRICE AND TERMS OF PAYMENT
6) PUBLIC COMMENT
Robin Gillette was called to speak on Advancing Student Success by Reducing Chronic Absence.
Richard Rudman was called to speak on the Santa Paula Aviation Museum discussing the history of the museum.
20 Ananda Luyt was called to speak on new program "Love our Market" Contest. 7) PRESENTATIONS
7.A) PROCLAMATION - JESSE GRAHAM - PERFORMING ARTS
Mayor Sobel presented Proclamation to Jesse Graham for Performing Arts.
7.B) PROCLAMATION - CHILDHOOD CANCER AWARENESS MONTH
Mayor Sobel presented Proclamation on Childhood Cancer Awareness Month to Ted Bagley, Chief Diversity Officer, and Andriana SandovalJimenez, Community Relations Manager, with Gold Coast Health Plan.
7.C) PARKS & RECREATION DEPARTMENT ACTIVITY REPORT
Greg Barnes, Parks and Recreation Director, presented the Parks and Recreation Activity Report.
8) CITY COUNCIL REPORTS
Councilmember Chavez:
Attended the Chicano Moratorium; organized a meet-and-greet meeting with the new Mexican Consulate Ricardo Vasquez; announced upcoming events:
walk for Alzheimer, and Mariachi Festival.
Vice Mayor Cornejo:
Attended the State Bagley-Keene training; Property Business Improvement District meeting; Ad hoc Development Agreement on Harvest project; ribbon cutting for Boys and Girls Club; dedication for the Police Department office ceremony; Santa Paula Basin Pumpers; meet-and-greet with Mexican Consulate Ricardo Vasquez; Labor Day Parade; meet with Alex Teague on water issues at Adams Canyon; and Economic Development Standing Committee.
Councilmember Crosswhite:
Attended Southern California Association of Governments; Spirit of Santa Paula ribbon cutting; Cardinal football game; open house at the Police Department; and Labor Day Parade.
Councilmember Juarez:
Attended Ventura Regional Sanitation District; Housing and Homeless meeting; Police Centennial open house; Cruise Night; Labor Day Parade; Citizen's Corp; announced upcoming Wild Fire Expo.
Mayor Sobel:
Attended Early Childhood Education; Communication ad hoc Committee meeting; Community Environment Council; Spirit of Santa Paula ribbon cutting; Chicano Moratorium event; Police Department Centennial; meet-and-greet with Mexican Consulate; Economic Development Committee; and Labor Day Parade.
9) CITY MANAGER REPORTS
21 Attended the Annual Risk Management Educational forum; Labor Day Parade; Spirit of Santa Paula ribbon cutting; no damage from storm or earthquake; and announced three new Lead for America Fellows began.
10) CONSENT CALENDAR
10.A) AMENDMENT NO. 4 TO VRSD CONTRACT NO. 19-005 REGARDING
CORPORATION STREET SINKHOLE REPAIR PROJECT
10.B) APPROVAL OF OFFICE OF TRAFFIC SAFETY (OTS) GRANT
AGREEMENTS, BUDGET APPROPRIATIONS, AND PURCHASE OF A
RADAR MESSAGE SIGN WITH TRAILER AND ACCESSORIES
10.C) AGREEMENT WITH THE SANTA PAULA CHAMBER OF COMMERCE This item was pulled for separate discussion and vote.
John Marquez with the Chamber of Commerce answered questions from council.
Motion: Approve Authorizing the City Manager to enter into a professional services agreement with the Chamber of Commerce for FY2023 - FY2024.
Moved by Pedro A Chavez, seconded by Carlos Juarez
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
10.D) NOTICE OF COMPLETION FOR THE BOYS & GIRLS CLUB
RESTROOM REMODEL PROJECT
10.E) AGREEMENT WITH THE LEW EDWARDS GROUP
10.F) ON-CALL AGREEMENTS FOR PROFESSIONAL CONSULTING
SERVICES
10.G) RESPONSE TO GRAND JURY REPORT ENTITLED WATER
AVAILABILITY FOR WILDFIRES IN VENTURA COUNTY
10.H) APPROVAL OF AMENDMENT NO. 2 TO MAINTENANCE SERVICES AGREEMENT WITH NATURAL GREEN LANDSCAPE, INC. FOR CITY
WIDE LANDSCAPE SERVICES
10.I) 2023-2025 MEMORANDUM OF UNDERSTANDING WITH THE SANTA
PAULA POLICE OFFICERS ASSOCIATION (SPPOA)
10.J) PURCHASE OF PROPERTY ROOM DRY AIR EVIDENCE STORAGE
EQUIPMENT
10.K) SPIRIT OF SANTA PAULA HARVARD SHELTER OPERATING
AGREEMENT
10.L) CITY ATTORNEY CONTRACT SERVICES
22 Mayor Sobel pulled item 10C for separate discussion and vote.
Motion: Approve as amended Consent Calendar items 10 A, B, D, E, F, G, H, I, J, K, and L, with correction on Police Chief name on item 10 B.
Moved by Jenny Crosswhite, seconded by Leslie Cornejo
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
11) PUBLIC HEARING
11.A) ORDINANCE AMENDING THE DEVELOPMENT CODE TO DEFINE
AND REGULATE SMALL-SCALE ALCOHOL PRODUCTION
FACILITIES
This item was presented by James Mason, Community & Economic Development Director.
Mayor Sobel opened the public hearing. With no public comments, the public hearing was closed.
Motion: Approve Introduce and waive first reading of Ordinance No. 1331 entitled, "An Ordinance of the City of Santa Paula Amending the Development Code to Define and Regulate Small-Scale Alcohol Production Facilities by Amending Sections 16.05.200 and 16.15.020, and Adding a New Section 16.58.015."3. Direct the City Clerk to publish a summary of the proposed Ordinance five (5) days before the meeting it is to be adopted and 15 days thereafter.
Moved by Carlos Juarez, seconded by Jenny Crosswhite
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
11.B) INTRODUCTION OF ORDINANCE NO. 1330 AMENDING CHAPTER 151 FLOOD DAMAGE PREVENTION
This item was presented by Clete J. Saunier, Public Works Director and Bob Woodward, City Engineer.
Mayor Sobel opened the public hearing. With no public comments, the public hearing was closed.
Motion: Approve as amended Waive first reading, read by title only, and introduce Ordinance No. 1330, entitled "An Ordinance of the City Council of the City of Santa Paula, Amending Sections 151.05, 151.06, 151.07, 151.12, 15.20, 151.23, 151.24, 151.25, 151.35, 151.36, 151.47 and 151.48, of the Santa Paula Municipal Code Regarding Flood Damage Prevention." To include change of language to reflect resident versus citizenry.
Moved by Pedro A Chavez, seconded by Carlos Juarez
Vote: Motion carried 5-0
23 Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
12) ACTION ITEMS
12.A) APPOINTMENTS TO COMMISSIONS AND COMMITTEES
Motion: Approve Appointment to the Planning Commission, returning applicant, Austin Auger to fill a four-year term September 6, 2023 - September 6, 2027; and returning applicant, Maria Grace Kelly to fill a four-year term September 6, 2023 - September 6, 2027.
Moved by Pedro A Chavez, seconded by Leslie Cornejo
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
Motion: Approve Appointment to the Senior Advisory Committee, returning applicant, Pamela Marshall to fill a two-year term September 6, 2023 - September 6, 2025; and returning applicant Gary Wellman to fill a two-year term September 6, 2023 - September 6, 2025.
Moved by Carlos Juarez, seconded by Jenny Crosswhite
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
Motion: Approve Appointment to the Recreation Commission Youth, Lupita Cisneros to fill a one-year term September 6, 2023 - September 6, 2024.
Moved by Pedro A Chavez, seconded by Leslie Cornejo
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
12.B) APPROVAL OF A YOUTH APPRENTICESHIP READINESS
ACCELERATOR (YARA) PROGRAM
Greg Barnes, Parks and Recreation Director, presented this item.
Jennifer Lopez, Executive Director for California PAL, provided information on the Youth Apprenticeship Readiness Accelerator (YARA) Program.
Motion: Approve Authorize the City Manager to execute all agreements related to the Youth Apprenticeship Readiness Accelerator (YARA) Program in a form approved by the City Attorney; and Adopt Resolution No. 7479 establishing partial funding obligations associated with the City’s disbursement of American Rescue Plan Act (ARPA) funds allocating $100,000 of funding for the YARA program.
Moved by Jenny Crosswhite, seconded by Pedro A Chavez
Vote: Motion carried 5-0
24 Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
12.C) FINANCING AGREEMENT FOR ADVANCED WATER TREATMENT
FACILITY
This item was presented by Clete J. Saunier, Public Works Director, and Mike Nunley with MKN & Associates.
Dave Fama and James Wawrzyniak with Jones Hall were available for Council questions.
Motion: Approve Resolution No. 7474 authorizing each of the Executive Director and Chair and their written designees to execute and deliver the Financing Agreement in the name of and on behalf of the Utility Authority for the final development and construction of the Advanced Water Treatment Facility.
Moved by Pedro A Chavez, seconded by Leslie Cornejo
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
12.D) UPDATE ON PILOT PROGRAM FOR SPANISH LANGUAGE
INTERPRETATION AT PUBLIC MEETINGS
This item was presented by Miguel Perez, Community Development Technician.
Motion: Approve extending services at public meetings for FY 2023/24.
Moved by Pedro A Chavez, seconded by Leslie Cornejo
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
12.E) CITY MANAGER DEPARTMENT ORGANIZATION
This item was presented by City Manager Dan Singer.
Council provided staff with direction for changes on the job description for Deputy City Manager and bring back for further discussion.
Motion: Approve as amended Resolution 7480, approving the salary schedule for the Police Officers Association.
Moved by Jenny Crosswhite, seconded by Carlos Juarez
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
13) ITEMS FOR FUTURE AGENDAS
13.A) FUTURE AGENDA ITEMS
14) CLOSED SESSION
25 No additional closed session was held.
15) ADJOURNMENT
Mayor Sobel adjourned the meeting at 10:52 p.m.
Julie Latshaw, City Clerk
ATTEST:
26 CITY OF SANTA PAULA
City Council Special Meeting
September 19, 2023, 4:00 PM
MINUTES
SPECIAL MEETING - COUNCIL CHAMBERS
1) CALL TO ORDER
Mayor Sobel called the meeting to order at 4:00 p.m.
2) ROLL CALL
Members Present: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, and Pedro A Chavez
3) PUBLIC COMMENT
None.
4) CONSENT CALENDAR
4.A) RESOLUTION NO. 7469 ACCEPTING EASEMENTS AND
APPROVING A QUITCLAIM DEED RELATING TO REAL PROPERTY
AT THE HARVEST AT LIMONEIRA SPORTS PARK AND EAST AREA 1 Councilmember Chavez recused himself from this item.
Motion: Approve Resolution No. 7469 to:
Approve and authorize recordation of a quitclaim deed for an unneeded easement;
Approve a grant of easement from the Master Corporation to the City for placement of electrical conduit at the Sports Park;
Approve a grant of easement from the City to the Master Corporation for a storm drain basin and access road at the Sports Park; Approve a grant of easement from Lewis Limoneira to the City for an access road to the Well 7 site; and
Accept a grant deed Lewis Limoneira to the City for the Well 7 site.
Authorize the City Manager to execute the deeds and requisite documents related to the deeds, and cause the same to be recorded; and
Authorize the City Manager, or designee, to make necessary modifications to the deeds prior to recording to meet legal requirements. 27 Moved by Carlos Juarez, seconded by Leslie Cornejo
Vote: Motion carried 4-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez
4.B) PURCHASE AGREEMENT FOR REAL PROPERTY AT 1435 EAST
HARVARD BOULEVARD
Motion: Approve Resolution No. 7481 to:
Authorize the City Manager to enter into a Purchase and Sale Agreement approved by the City Attorney with Buck Adam Drew, substantively in the form presented, for the purchase of 0.55 acres of land located at 1435 Harvard Boulevard for $525,000.00; Authorize acceptance of the land pursuant to Government Code Section 27281; and staff to provide a presentation on the property at the October 18, 2023 Regular City Council meeting.
Moved by Pedro A Chavez, seconded by Jenny Crosswhite
Vote: Motion carried 5-0
Yes: Andy Sobel, Leslie Cornejo, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
5) STUDY SESSION
5.A) COUNCIL MANUAL OF PROCEDURAL GUIDELINES
Council reviewed and discussed the draft Council Manual of Procedural Guidelines for the Conduct of City Council and Constituent Body/Commission Meetings, providing staff with direction for updates. 6) ADJOURNMENT
Mayor Sobel adjourned the meeting at 6:26 p.m.
Julie Latshaw, City Clerk
ATTEST:
28 CITY OF SANTA PAULA
City Council Special Meeting
October 4, 2023, 6:00 PM
MINUTES
SPECIAL MEETING - COUNCIL CHAMBERS
1) CALL TO ORDER
Mayor Sobel called the meeting to order at 6:00 p.m.
2) ROLL CALL
Members Present: Andy Sobel, Jenny Crosswhite, Carlos Juarez, and Pedro A Chavez
Members Absent: Leslie Cornejo
3) CLOSED SESSION
3.A) CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE § 54956.8
PROPERTY: 1435 EAST HARVARD (0.55 ACRES)
VENTURA COUNTY APN: 101026014
AGENCY NEGOTIATOR: JAMES MASON, COMMUNITY AND
ECONOMIC DEVELOPMENT DIRECTOR
NEGOTIATING PARTIES: CITY OF SANTA PAULA AND BUCK DREW
With no public comments by the public, Council recessed to closed session at 6:02 p.m.
4) CLOSED SESSION REPORT
Interim City Attorney reported there were no reportable actions taken. 5) ADJOURNMENT
Mayor Sobel adjourned the meeting at 6:25 p.m.
ATTEST:
29 Julie Latshaw, City Clerk
30 CITY OF SANTA PAULA
City Council Regular Meeting
October 4, 2023, 6:30 PM
MINUTES
REGULAR MATTERS - COUNCIL CHAMBERS
1) CALL TO ORDER
Mayor Sobel called the meeting to order at 6:35 p.m.
2) INVOCATION
Chaplain Kay Wilson-Bolton provided the Invocation.
3) FLAG SALUTE
Councilmember Crosswhite led the flag salute.
4) ROLL CALL
Members Present: Andy Sobel, Jenny Crosswhite, Carlos Juarez, and Pedro A Chavez
Members Absent: Leslie Cornejo
After Roll Call, Interim City Attorney Monica Castillo reported Council met in closed session at 6:00 p.m., reporting no reportable action taken on the following:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO
GOVERNMENT CODE § 54956.8
*PROPERTY: 1435 EAST HARVARD (0.55 ACRES)
*VENTURA COUNTYAPN: 101026014
*AGENCY NEGOTIATOR: JAMES MASON, COMMUNITY AND ECONOMIC
DEVELOPMENT DIRECTOR
*NEGOTIATING PARTIES: CITYOF SANTA PAULAAND BUCK DREW
5) PUBLIC COMMENT
Richard Rudman was called to speak representing the Aviation Museum, providing a poem, and announcing the passing of Bruce Dickinson. 31 6) PRESENTATIONS
6.A) POLICE STATION REMODELAND SECURITYFENCE UPDATE
Bill Lindsey, Project Manager, presented a presentation on the City of Santa Paula Police Station project.
6.B) POLICE DEPARTMENT QUARTERLY REPORT
Interim Police Chief Donald Aguilar presented the Police Department Quarterly Report from May 1, 2023 through July 31, 2023. 7) CITY COUNCIL REPORTS
Councilmember Juarez:
Attended the Celebration of Father Thomas; Senior Advisory Committee; City Employee Celebration; Homeless and Housing; Memorial Service for Beverly Samanth Frady; and met with representative from Athens, Rondi Guthrie.
Councilmember Crosswhite:
Attended Southern California Association of Governments Regional Council, Energy Environment Committee and Legislative Committee meetings; HarvestAd Hoc Committee; Ventura Council of Governments; League of California Cities Conference; Mobility 21 Transportation Conference; and Local Area Formation Commission.
Councilmember Chavez:
Attended the League of California Cities Conference; announced upcoming events: Cruise Night; 150th County Anniversary Celebration; Santa Paula Beautiful; announced Cause is having a renters townhall; explained the Oil Museum parking lot paving is being paid at the cost of the County; and the city is on track with the Harvard paving project.
Mayor Sobel:
Gave a shoutout to Gus Gunderson for providing weeding and painting; attended the city sponsored Wildfire Expo; Annual Mariachi fundraiser; Autism Society of Ventura; Union Oil Building workshop; Limoneira Director Lunch meeting; Memorial Service for Ernie Morales; Harvest and Pumpkin Festival; Memorial Service for Sandy Frady; Citizens Corp meeting; League of California Cities Conference, provided information on the CERT program, and sent a condolence letter to Senator Feinstein office.
8) CITY MANAGER REPORTS
City Manager Dan Singer:
Attended the International City Managers Association Conference; and Limoneira Director Lunch meeting.
9) CONSENT CALENDAR
32 9.A) APPROVAL OF MINUTES
City Council Special Minutes for July 19, 2023
City Council Special Minutes for August 2, 2023
City Council Regular Minutes for August 2, 2023
City Council Special Minutes for August 9, 2023
City Council Special Minutes for August 16, 2023
City Council Regular Minutes for August 16, 2023
9.B) ON-CALL AGREEMENTS FOR PROFESSIONAL CONSULTING
SERVICES
9.C) APPROVAL OF THE MEMORANDUM OF UNDERSTANDING WITH THE
COMMUNITYSERVICES OFFICER (CSO) ASSOCIATION
9.D) STREET DIVISION VEHICLE PURCHASE
9.E) SANTA PAULA WATER RECYCLING FACILITY AND WASTE
COLLECTION SYSTEM ON-CALL AND EMERGENCY SCADA
MAINTENANCE SERVICES AGREEMENT
9.F) SECOND READING AND ADOPTION OF ORDINANCE NO. 1331
AMENDING THE DEVELOPMENT CODE TO DEFINE AND REGULATE
SMALL-SCALE ALCOHOL PRODUCTION FACILITIES
9.G) SECOND READING AND ADOPTION OF ORDINANCE NO. 1330
UPDATING CHAPTER 151 FLOOD DAMAGE PREVENTION OF THE
SANTA PAULA MUNICIPAL CODE
9.H) REQUEST AND AUTHORIZATION FOR PERSONNEL TO ATTEND THE 2024 CHANDLER, ARIZONA LAW ENFORCEMENT EXPLORER
TACTICAL COMPETITION
9.I) AUTHORIZATION OF OUT OF STATE TRAVEL
Motion: Approve as amended Consent Calendar with amendments to 9.A correction on July 19, 2023 meeting; 9.B TJKM Section 3.21 add the wording "fiscal year"; and 9.C on page 9 add wording "90 days".
Moved by Jenny Crosswhite, seconded by Carlos Juarez
Vote: Motion carried 4-0
Yes:Andy Sobel, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez 10) ACTION ITEMS
10.A) CITYSTREET NAMES RECOMMENDATIONS
Council provided staff with feedback for amending list of suggested street names.
Motion: Approve as amended Resolution No. 7483 with modifications to the amended list of suggested street names.
33 Moved by Carlos Juarez, seconded by Pedro A Chavez
Vote: Motion carried 4-0
Yes:Andy Sobel, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez
10.B) UPDATED MANUAL OF PROCEDURAL GUIDELINES FOR THE
CONDUCT OF CITY COUNCIL AND CONSTITUENT
BODY/COMMISSION MEETINGS FOR THE CITYOF SANTA PAULA
Interim CityAttorney Monica Castillo presented this item.
Council provided staff with feedback for changes on the Manual of Procedural Guidelines and requested the item be brought back for a final vote.
11) ITEMS FOR FUTURE AGENDAS
11.A) FUTURE AGENDA ITEMS
12) CLOSED SESSION
12.A) PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to Government Code Section 54957. Title: Interim CityAttorney Council recessed to closed session at 9:17 p.m.
13) CLOSED SESSION REPORT
City Manager Dan Singer reported there was no reportable action taken on 12.A. 14) ADJOURNMENT
Mayor Sobel adjourned the meeting in memory of Robert "Bob" Borrego, Beverly Samantha Frady, and Bruce Dickinson, at 9:35 p.m.
Julie Latshaw, City Clerk
ATTEST:
34 CITY OF SANTA PAULA
City Council Special Meeting
October 9, 2023, 3:00 PM
MINUTES
SPECIAL MEETING - COUNCIL CHAMBERS
1) CALL TO ORDER
Mayor Sobel called the meeting to order at 3:00 p.m.
2) ROLL CALL
Members Present: Andy Sobel, Jenny Crosswhite, Carlos Juarez, and Pedro A Chavez
3) PUBLIC COMMENT
Thomas Weisbecker was called to speak, providing comments on the property at 1435 East Harvard Boulevard.
4) ACTION ITEMS
4.A) PURCHASE AGREEMENT FOR REAL PROPERTY AT 1435 EAST
HARVARD BOULEVARD
Motion: Approve Resolution No. 7485 to Authorize the City Manager to enter into a Purchase and Sale Agreement approved by the City Attorney with Buck Adam Drew, substantively in the form presented, for the purchase of 0.55 acres of land located at 1435 Harvard Boulevard for $550,000.00; and Authorize acceptance of the land pursuant to Government Code Section 27281.
Moved by Jenny Crosswhite, seconded by Carlos Juarez
Vote: Motion carried 4-0
Yes:Andy Sobel, Jenny Crosswhite, Carlos Juarez, Pedro A Chavez 5) ADJOURNMENT
Mayor Sobel adjourned the meeting at 3:22 p.m.
35 Julie Latshaw, City Clerk
ATTEST:
36 To: Honorable Mayor and Members of the City Council
From: Beatriz Jimenez, Assistant Finance Director
Subject: AUGUST 2023 WARRANTS AND CERTIFICATIONS
Date: October 18, 2023
Agenda Item: 10.B
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Review and accept the "Certification of Accounts Payable" for the accounts payable payment cycles for August 2023, starting check number 334906 and ending check number 335169.
2. Review and accept the "Certification of Salaries" for the pay period ending dates July 28th, 2023 through August 11th, 2023.
BACKGROUND:
This staff report certifies the separation of duties between the Preparer (Accounting and Payroll Specialist) and the Reviewer (Finance Director and Assistant Finance Director).
Presented in the attached documents:
a) CERTIFICATION OF ACCOUNTS PAYABLE CHECKS by check number range and dates.
It also discloses any voided checks.
b) EXPENSE REPORTS showing the amount and funds accounts payable came from.
The "Check Report" depicts the following columns:
c) AP-ACCOUNTS PAYABLE for the vendors (non-City staff) by the vendor number, vendor name, payment date, payment amount and check number (entitled 'number'). d) PY-PAYROLL for benefit payments, insurance, retirement, etc. Benefits payable on behalf of City staff.
e) Bank Code Summary by payment type.
f) Fund Summary by fund the accounts payables utilized. 37 CERTIFICATION OF SALARIES
This is the certification (separation of duties between "preparer" and the "reviewer") of salaries and benefits (payroll checks) by fund. It lists salary (payroll) issued checks by beginning and ending check number, payroll ending dates July 28th, 2023 through August 11th, 2023.
ANALYSIS:
See the attachments for expense breakdown by respective fund.
STRATEGIC PLAN:
None.
FISCAL IMPACTS:
None.
OPTIONS:
1. Receive and file August 2023 Certifications of Accounts Payable Checks and Certifications of Salaries.
ATTACHMENTS:
AUGUST 2023 WARRANTS AND CERTIFICATIONS.pdf
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70 To: Honorable Mayor and Members of the City Council
From: Beatriz Jimenez, Assistant Finance Director
Subject: SEPTEMBER 2023 WARRANTS AND CERTIFICATIONS
Date: October 18, 2023
Agenda Item: 10.C
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Review and accept the "Certification of Accounts Payable" for the accounts payable payment cycles for September 2023, starting check number 335170 and ending check number 335384.
2. Review and accept the "Certification of Salaries" for the pay period ending dates August 25th, 2023 through September 22nd, 2023.
BACKGROUND:
This staff report certifies the separation of duties between the Preparer (Accounting and Payroll Specialist) and the Reviewer (Finance Director and Assistant Finance Director).
Presented in the attached documents:
a) CERTIFICATION OF ACCOUNTS PAYABLE CHECKS by check number range and dates.
It also discloses any voided checks.
b) EXPENSE REPORTS showing the amount and funds accounts payable came from.
The "Check Report" depicts the following columns:
c) AP-ACCOUNTS PAYABLE for the vendors (non-City staff) by the vendor number, vendor name, payment date, payment amount and check number (entitled 'number'). d) PY-PAYROLL for benefit payments, insurance, retirement, etc. Benefits payable on behalf of City staff.
e) Bank Code Summary by payment type.
f) Fund Summary by fund the accounts payables utilized. 71 CERTIFICATION OF SALARIES
This is the certification (separation of duties between "preparer" and the "reviewer") of salaries and benefits (payroll checks) by fund. It lists salary (payroll) issued checks by beginning and ending check number, payroll ending dates August 25th, 2023 through September 22nd, 2023.
ANALYSIS:
See the attachments for expense breakdown by respective fund.
STRATEGIC PLAN:
None.
FISCAL IMPACTS:
None.
OPTIONS:
1. Receive and file September 2023 Certifications of Accounts Payable Checks and Certifications of Salaries.
ATTACHMENTS:
SEPTEMBER 2023 WARRANTS AND CERTIFICATIONS.pdf
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104
To: Honorable Mayor and Members of the City Council
From: Christy Ramirez, Finance Director
Subject: INVESTMENT POLICY UPDATE
Date: October 18, 2023
Agenda Item: 10.D
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends the City Council approve the proposed Investment Policy updates to be in line with industry standards.
BACKGROUND:
On May 6, 2020, the City Council approved an investment policy in order to establish strategies, practices and procedures to be used in investing public funds in a prudent manner, which provided the maximum security while meeting daily cash flow needs and conforming to all statutes governing the investment of public funds. The policy also identified practices that enhanced opportunities for a prudent and systematic investment of public funds. The policy is intended to guide the investment of City funds toward the goals of safety, liquidity and yield.
ANALYSIS:
City staff, along with the City's investment advisory firm, Chandler Asset Management, has reviewed the investment policy and proposed changes to the following sections:
9.1.11 & 9.1.13 Corporate Medium-Term Notes: Update per SB 974 (2016) and commercial paper per SB 998 (2020)
9.2 Unauthorized Investments: Update per SB 1489 (2022) clarification on permitted investments
10.0 Investment Pools/Mutual Funds: Added some best practice language related to investment pools/mutual funds
17.0 Investment Reporting: Update per SB 1489 (2022) which changed the required reporting requirements from 30 days to 45 days.
Glossary: Update per SB 1489 (2022) clarifying definition of maturity date from trade date to settlement date.
Other: Miscellaneous punctuation/grammar.
Recommended edits to the policy are identified in red-line track-changes for ease of identification on the attached document.
STRATEGIC PLAN:
105
While this item is not a direct goal or objective in City Council's two-year strategic plan, it is important to maintain fiscal policies updated to remain in compliance with industry standards and within state and federal regulations.
FISCAL IMPACTS:
There are no direct fiscal impacts related to the recommended action. Staff believes the updated Investment policy will serve in its goal to best guide the investment of City funds toward the goals of safety, liquidity and yield.
OPTIONS:
Council may reject the Investment Policy changes and provide further direction to staff.
ATTACHMENTS:
Santa Paula Investment Policy_2022_REDLINE2023-02-01.pdf 106
Investment Policy
Approved 310/169/20222023
For Fiscal Year 20212023/2022 2024 or Calendar Year
20222023
107
City of Santa Paula
Investment Policy
Table of Contents
1.0 Purpose .................................................................................................................. 33
2.0 Policy ...................................................................................................................... 33
3.0 Scope ..................................................................................................................... 33
3.1 Funds Included by this Policy ........................................................................... 33
3.2 Pooling of Funds .............................................................................................. 44
3.3 Investments Held Separately ........................................................................... 44
4.0 Prudence ................................................................................................................ 44
5.0 Objectives ............................................................................................................... 44
5.1 Safety ............................................................................................................... 44
5.2 Liquidity ............................................................................................................ 55
5.3 Yield (Return on Investment) ............................................................................ 55
6.0 Delegation of Authority ........................................................................................... 55
7.0 Ethics and Conflicts of Interest ............................................................................... 66
8.0 Authorized Financial Institutions and Broker/Dealers ............................................. 66
8.1 Authorized Financial Institutions ....................................................................... 66
8.2 Authorized Broker/Dealers ............................................................................... 77
9.0 Authorized and Suitable Investments ..................................................................... 77
9.1 Authorized Investment Types ........................................................................... 77
9.2 Unauthorized Investments............................................................................ 1212
10.0 Collateralization ............................................................................................ 1212
11.0 Safekeeping and Custody ............................................................................ 1312
12.0 Diversification ............................................................................................... 1312
13.0 Maximum Maturities ..................................................................................... 1413
14.0 Internal Control ............................................................................................. 1413
15.0 Performance Standards ............................................................................... 1513
16.0 Investment Reporting ................................................................................... 1515
17.0 Investment Policy Adoption .......................................................................... 1615
18.0 Exceptions .................................................................................................... 1615
19.0 Glossary ....................................................................................................... 1717 108
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3 1.0 Purpose
It is the purpose of the City’s investment policy to establish strategies, practices and procedures to be used in investing public funds in a prudent manner, which will provide the maximum security while meeting daily cash flow needs and conforming to all statutes governing the investment of public funds.
Secondly, this document will identify policies that enhance opportunities for a prudent and systematic investment of public funds. This policy is intended to guide the investment of City funds toward the goals of safety, liquidity and yield.
2.0 Policy
It is the policy of the City of Santa Paula, hereafter referred to as the “City”, to invest public funds not required for immediate day-to-day operations, also referred to as idle funds, in safe and liquid investments having acceptable rates of return while conforming to all state statutes and this City's Investment Policy.
California Government Code Section 53646 (a)(2) states that the City Treasurer may annually submit an investment policy to the City Council for consideration at a public meeting. This investment policy conforms to all pertinent existing laws of the State of California, including California Government Code Sections 53600 et seq. Any conflict between this City Investment Policy and California Government Code Section 53600 et. seq., shall be interpreted in favor of the California Government Code.
3.0 Scope
This investment policy applies to all financial assets and investment activities of the City. These funds are reflected in the City’s audited Comprehensive Annual Financial Report (CAFR). If the City invests funds on behalf of another agency and, if that agency does not have its own policy, the City’s investment policy shall govern the agency’s investments. Any additional funds that may be created from time to time shall also be administered within the provisions of this policy and comply with the California State Government Code. This policy covers the investment activities of idle funds under the direct authority of the City.
3.1 Funds Included by this Policy
General Fund
Enterprise Funds
Special Revenue Funds
Debt Service Funds
Capital Project Funds
Fiduciary Funds
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4 3.2 Pooling of Funds
Except for cash in funds prohibited from pooling as described in Section
3.3, the City shall consolidate cash balances from all funds to maximize investment earnings. Investment income shall be allocated to various funds in accordance with generally accepted accounting principles.
3.3 Investments Held Separately
In some instances, investments cannot be included in the City's investment pool. These may include investments of bond proceeds. In such cases the funds will be held separately when required by law, contract or other authority.
4.0 Prudence
The City Treasurer is authorized to make investment decisions on behalf of the City investing public funds subject to the prudent investment standard. The Prudent Investor Standard of the California Government Code Section 53600.3 states, “when investing, reinvesting, purchasing, acquiring, exchanging, selling or managing public funds, a trustee shall act with care, skill, prudence and diligence under the circumstances then prevailing, including, but not limited to, the general economic conditions and the anticipated need of the [City], that a prudent person in a like capacity and familiarity with those matters would use in the conduct of funds of a like character and with like aims, to safeguard the principal and maintain the liquidity needs of the [City]”. The standard of prudence to be used by investment officials shall be applied in the context of managing the overall portfolio.
Trustees are those persons authorized to make investment decisions on behalf of a local agency. Trustees or City investment officials, acting in accordance with written procedures, the investment policy and exercising due diligence, shall be relieved of personal responsibility for an individual security's credit risk changes or market price changes, provided deviations from expectations are reported in a timely manner and appropriate action is taken to control adverse developments.
5.0 Objectives
Section 53600.5 of the California Government Code outlines the primary objectives of a trustee investing public money. The primary objectives, in order of priority, of the City’s investment activities shall be:
5.1 Safety
Safety of principal is the foremost objective of the investment program.
Investments by the City shall be undertaken in a manner that seeks to ensure preservation of capital in the overall portfolio and reduce both 110
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5 credit and market risk. The type of investment instruments and diversification of investments are critical components to ensuring investment portfolio safety.
5.2 Liquidity
The City's investment portfolio will remain sufficiently liquid to enable the City to meet all operating requirements which might be reasonably anticipated. Liquidity also refers to the ability to convert an investment to cash without loss of principal and minimal loss of interest.
5.3 Yield (Return on Investment)
The City’s investment portfolio shall have the objective of attaining a comparative performance measurement or an acceptable rate of return throughout budgetary and economic cycles. These measurements should be commensurate with the City’s investment risk constraints identified in the Investment Policy and the cash flow characteristics of the portfolio.
Return on investment becomes a consideration only after the basic requirements of safety and liquidity have been met.
The City Treasurer shall strive to maintain the level of investment of all idle funds as close to 100% as possible. While the objectives of safety and liquidity must first be met, it is recognized that investment assets represent a potential source of significant revenues. It is to the benefit of the City that these assets be managed to produce optimum revenues consistent with State statutes and local policies.
6.0 Delegation of Authority
Authority to manage the City’s investment program is derived from the California Government Code Sections 53600 through 53609. The management of idle cash and the investment of funds identified in paragraph 3.1 is the responsibility of the City Treasurer (Treasurer). The Treasurer is an appointed position by the City Manager. Management responsibility for the investment program is hereby delegated to the Treasurer as directed by the City Council. Under this authority granted by the City Council, no person may engage in an investment transaction covered by the terms of this policy unless directed by the Treasurer.
In the execution of this delegated authority, the Treasurer may establish accounts with qualified financial institutions and brokers/dealers for the purpose of effecting investment transactions in accordance with this policy. 111
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6 Transactions, including wiring instructions, must be identified in advance and approved in writing by the Treasurer or designee. All investment transactions in excess of $250,000 (except for deposits or withdrawals from the Local Agency Investment Fund, Ventura County Investment Pool or Other Pools) shall also require the signature of the City Manager or his/her designee.
The City may engage the services of one or more external investment advisers, who are registered under the Investment Advisers Act of 1940, to assist in the management of the City’s investment portfolio in a manner consistent with the City’s objectives. External investment advisers may be granted discretion to purchase and sell investment securities in accordance with this investment policy. The City Council may renew the authority annually and may revoke the authority at any time.
7.0 Ethics and Conflicts of Interest
All participants in the City's investment process shall act responsibly as custodians of the public trust. Elected officials and employees involved in the investment process shall refrain from personal business activity that could conflict with proper execution of the investment program or which could impair or create the appearance of an impairment of their ability to make impartial investment recommendations and decisions. Investment officials and employees shall make all disclosures appropriate under the Fair Political Practices Act and shall seek and follow the advice of the City Attorney and the Fair Political Practices Commission whenever there is a question of personal, financial or investment positions that could represent potential conflicts of interest.
8.0 Authorized Financial Institutions and Broker/Dealers Investments shall be purchased only through well-established, financially sound institutions. All financial institutions and broker/dealers who desire to become qualified vendors for investment transactions will be given a copy of the City's investment policy and certification form. The completion and submission of the certification form by a broker-dealer or financial institution shall constitute proof that it has received the City’s Statement of Investment Policy, read it, and intends to comply with it. Qualified financial institutions and Broker/dealers must provide current audited financial statements and meet the applicable criteria established in Sections 8.1 or 8.2 of this policy.
8.1 Authorized Financial Institutions
The City shall only deposit public monies in financial institutions that have:
(1) at least $500 million in total assets; (2) a core capital-to-total assets 112
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7 ratio of at least five percent; (3) favorable ratings from a recognized financial institution rating service, as determined by the City Treasurer; (4) a federal or a state charter; or are eligible institutions per the California Government Code and (5) a branch office within Ventura County, and/or a 50 mile radius of the City.
Under no circumstances shall the City’s deposits in a financial institution exceed the total shareholders’ equity of that institution.
8.2 Authorized Broker/Dealers
The City will only utilize investment services of financial institutions and security broker/dealers selected by credit worthiness who are authorized to provide investment services in the State of California. These may include primary dealers or regional dealers that qualify under Securities and Exchange Commission Rule 15C3-1 (uniform new capital rule).
All financial institutions and broker-dealers for investment transactions must supply the following to the City as appropriate:
Current audited financial statements
Proof of Financial Industry Regulatory Authority (FINRA) certification, Proof of State of California registration
Trading resolution
Completed City of Santa Paula broker-dealer questionnaire, which contains a certification of having read, understood and agreeing to comply with the City’s Investment Policy and depository contracts
9.0 Authorized and Suitable Investments
All investments and deposits of the City shall be made in accordance with California Government Code, Sections 16429.1, 53600-53609, and 53630-53686 et seq., and as further limited in this policy.
The City is empowered by statute to invest in the following types of securities:
9.1 Authorized Investment Types
9.1.1 California State Treasurer's Local Agency Investment Fund (LAIF) as authorized by Gov. Code Section 16429.1(b).
9.1.2 Ventura County Investment Pool — Ventura County Treasurer's Investment Pool as authorized by Gov. Code Section 53684.
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8 9.1.3 Other Pools — Shares of beneficial interest issued by a joint powers authority organized in the State of California pursuant to Gov. Code Section 6509.7 that invests in the securities and obligations authorized in Gov. Code Section 53601 subdivisions (a) to (q), inclusive. Each share shall represent an equal proportional interest in the underlying pool of securities owned by the joint powers authority. Purchases are limited to those pools that seek to maintain a constant net asset value and are rated in the highest category by a nationally recognized statistical-rating organization (NRSRO). To be eligible under this section, the joint powers authority issuing the shares shall have retained an investment adviser that meets all of the following criteria: (1) The adviser is registered or exempt from registration with the Securities and Exchange Commission; (2) the adviser has not less than five years of experience investing in the securities and obligations authorized in subdivisions (a) to (q), inclusive, of [Gov.
Code] section 53601; and (3) the adviser has assets under management in excess of five hundred million dollars
($500,000,000). Gov. Code § 6509.7(a).
9.1.4 U.S. Government — United States Treasury bills, notes, & bonds, or certificates of indebtedness, or those for which the full faith and credit of the United States Government are pledged for the payment of principal and interest.
9.1.5 U.S. Agencies — Federal agency or United States government senior debt- sponsored enterprise obligations, participations, or other instruments, including those issued by or fully guaranteed as to principal and interest by federal agencies or United States government-sponsored enterprises. No more than 30% of the portfolio may be invested in any single Agency/GSE issuer. The maximum percent of agency callable securities in the portfolio will be 20%..
9.1.6 State Municipal Securities — Registered treasury notes or bonds issued by any of the 50 United States, including bonds payable solely out of the revenues from a revenue producing property owned, controlled, or operated by a state or by a department, board, agency, or authority of any state. Securities eligible for investment under this paragraph shall be rated in the rating category of at least “AA” or “A-1” (for short-term securities), their respective equivalents, or higher by a NRSRO. A maximum of 30 percent of the City’s portfolio may be invested in State and local municipal securities.
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9 9.1.7 California Local Agency Municipal Securities — Bonds, notes, warrants or other evidence of debt issued by a local agency or municipality located within the State of California, including debt securities issued by the City. Securities eligible for investment under this paragraph shall be rated in a rating categories at least “AA” or “A-1”, their respective equivalents, or higher by a NRSRO.
A maximum of 30 percent of the City’s portfolio may be invested in State and local municipal securities.
9.1.8 Non-Negotiable Certificates of Deposit (CDs) — Non-negotiable deposits in a state or national bank, savings association or federal association, federal or state credit union in the State of California as authorized by CGC Section 53652. In accordance with CGC Section 53635.2, to be eligible to receive City deposits, a financial institution shall have received an overall rating of not less than “satisfactory” in its most recent evaluation by the appropriate federal financial supervisory agency of its record of meeting the credit needs of California’s communities. CDs are required to be collateralized as specified under Gov. Code Section 53630 et seq.
The Treasurer, at his/her discretion, may waive the
collateralization requirements for any portion that is covered by federal deposit insurance. Deposits in excess of the Federal Deposit Insurance Corporation (FDIC) or National Credit Union Administration (NCUA) insured shall be secured pursuant to California Government Code Section 53651 and 53652. The City shall have a signed agreement with any depository accepting City funds per Gov. Code Section 53649. In accordance with CGC Section 53638, any deposit shall not exceed that total
shareholder’s equity of any depository bank, nor shall the deposit exceed the total net worth of any institution. A maximum of 20 percent of the City’s portfolio may be invested in CDs.
9.1.9 Negotiable Certificates of Deposit – Negotiable CDs issued by a nationally or state chartered bank or a state or federal savings and loan association, a state or federal credit union, or by a federally- or state-licensed branch of a foreign bank. Negotiable CDs issued with maturities in excess of one year must be rated in a rating category of “A”, the equivalent or higher by a NRSRO.
Negotiable CDs with maturities under one year must be rated in a rating category of “A-1,” the equivalent, or higher by a NRSRO.
Purchases of negotiable CDs may not exceed 30 percent (in combination with CDs purchased through a deposit placement service) of the City's portfolio.
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10 9.1.10 Placement Service Deposits — The City may deposit a portion of its funds with commercial bank, savings bank, savings and loan association, or credit union that uses a private sector entity that assists in the placement of federally insured deposits. The selected depository for placement services must be: a nationally or state chartered commercial bank, savings bank, savings and loan association, or credit union in California. Further, the selected depository institution may submit the funds to a private sector entity that assists in the placement of certificates of deposit with one or more commercial banks, savings banks, savings and loan associations, or credit unions that are located in the United States, for the City’s account. The full amount of the principal and the interest that may be accrued during the maximum term of each certificate of deposit shall at all times be insured by the FDIC or the NCUA. The selected depository institution shall serve as a custodian for each certificate of deposit that is issued with the placement service for the City’s account. Purchases of placement service deposits may not exceed 30 percent (in combination with negotiable CDs) of the City’s portfolio.
9.1.11 Medium-Term Corporate Notes — Medium term notes issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States that are rated in the a rating category of “AA” or its equivalent or better by at least one NRSRO., the equivalent or higher by a NRSRO and issued by an issuer rated at least “A” or the equivalent by an NRSRO.
Purchases of medium term notes may not exceed 30 percent of the City's portfolio.
9.1.12 Asset-Backed Security – Any mortgage pass-through security, collateralized mortgage obligation, mortgage-backed or other paythrough bond, equipment leaseback certificate, consumer receivable pass-through certificate, or consumer receivablebacked bond. Eligible securities must be rated in a rating category, by a NRSRO, of “AA”, the equivalent or higher. No more than 20 percent of the City's portfolio may be invested in this type of security.
9.1.13 Commercial Paper — Commercial paper of "prime" quality of the highest ranking or of the highest letter and number rating as provided for by a NRSRO. The entity that issues the commercial paper shall meet all of the following conditions in either paragraph (1) or paragraph (2) below:
Commented [AS1]: SB 974 (2016) clarified the rating
category language for CP, MTNs, MPTs, and Supranationals. 116
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11 1. The entity meets the following criteria: (A) is organized and operating in the United States as a general corporation. (B) has total assets in excess of five hundred million dollars
($500,000,000). (C) has debt other than commercial paper, if any, that is rated in a rating category of “A”, the equivalent or higher by a NRSRO.
2. The entity meets the following criteria: (a) is organized within the United States as a special purpose corporation, trust, or limited liability company. (b) Has program wide credit
enhancements including, but not limited to, over collateralization, letters of credit, or surety bond. (c) Has commercial paper that is rated in a rating category of “A-1” or the equivalent or higher by a NRSRO.
Eligible commercial paper shall have a maximum maturity of 270 days or less. No more than 25 percent of the City’s portfolio may be invested in eligible commercial paper. Under a provision sunsetting on January 1, 2026, no more than 40% of the portfolio may be invested in Commercial Paper if the City’s investment assets under management are greater than $100,000,000. The City may purchase no more than 10 percent of the outstanding commercial paper of any single issuer.
9.1.14 Bankers’ Acceptances — Bills of exchange or time drafts drawn on and accepted by a commercial bank, otherwise known as bankers' acceptances. Eligible bankers' acceptances are restricted to issuing financial institutions with short-term paper rated in the highest category by a NRSRO. Purchases of bankers' acceptances shall have a maximum maturity of 180 days or less, and no more than 40 percent of the City's portfolio.
9.1.15 Money Market and Mutual Funds — Shares of beneficial interest issued by diversified management companies that are money market funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1 et seq.). Such funds must carry the highest rating of at least two of the three largest national rating agencies.
All such investments shall be placed only in money market or mutual funds intended to maintain constant net asset value and that invest solely in U.S. Treasuries and Federal Agency obligations and repurchase agreements invested in such
obligations. Investment in Money Market or Mutual Funds shall Commented [AS2]: SB 998 (2020) This is a provision that allowed larger programs to have a higher CP allocation. There is no impact for City of Santa Paula.
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12 not exceed 20% of the portfolio or more than 20 percent in any one fund.
9.1.16 Sweep account for the investment of overnight funds when the funds are swept into investments authorized by this policy.
9.1.17 Passbook accounts maintained solely to provide for ongoing operational needs shall be subject to the requirements of this policy.
9.1.18 Bonds, notes, or other forms of indebtedness issued by the City, including bonds payable solely out of the revenues from a revenue producing property owned, controlled, or operated by the City or by a department, board, agency, or authority of the local agency.
9.1.19 Supranationals: Issues are that are US dollar denominated senior unsecured unsubordinated obligations issued or unconditionally guaranteed by the International Bank for Reconstruction and Development, International Finance Corporation, or InterAmerican Development Bank. The securities are rated in a rating category of “AA” or its equivalent or better by a NRSRO. No more than 30% of the total portfolio may be invested in these securities.
No more than 10% of the portfolio may be invested in any single issuer.
9.2 Unauthorized Investments
Investments not specifically authorized herein are disallowed. Additionally, Section 53601.6 of the California Government Code disallows the following:
inverse floaters, range notes, or interest-only strips that are derived from a pool of mortgages. Futures, options, all leveraged purchases, reverse repurchases, and speculations on interest rates are specifically not allowed by this policy. Investment in any security that could result in a zero interest accrual if held to maturity is prohibited. Under a provision sunsetting on January 1, 2026, securities backed by the U.S. Government that could result in a zero- or negative-interest accrual if held to maturity are permitted. The purchase of securities with a forward settlement of longer than 45 days is prohibited.
.
10.0 Investment Pools/Mutual Funds
The City shall conduct a thorough investigation of any pool or mutual fund prior to making an investment, and on a continual basis thereafter. The Treasurer shall develop a questionnaire which will answer the following general questions:
Commented [AS3]: SB 1489 (2022) Clarifies permitted
investments forward settlement period.
Commented [AS4]: When mutual funds are a permitted
investment, it is a best practice to include the language surrounding how they will be selected by the City.
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13 A description of eligible investment securities, and a written statement of investment policy and objectives.
A description of interest calculations and how it is distributed, and how gains and losses are treated.
A description of how the securities are safeguarded (including the settlement processes), and how often the securities are priced and the program audited.
A description of who may invest in the program, how often, what size deposit and withdrawal are allowed.
A schedule for receiving statements and portfolio listings. Are reserves, retained earnings, etc. utilized by the pool/fund? A fee schedule, and when and how is it assessed.
Is the pool/fund eligible for bond proceeds and/or will it accept such proceeds?
10.011.0 Collateralization
Investments in certificates of deposit, sweep accounts and passport accounts shall be fully insured up to the limit set by the Federal Deposit Insurance Corporation or National Credit Union Administration. Investments in certificates of deposit, sweep accounts and passport accounts in excess of the FDIC or NCUA limit shall be properly collateralized as required by law.
11.012.0 Safekeeping and Custody
All security transactions entered by the City shall be conducted on a delivery-vs.- payment (DVP) basis. Securities owned by the City, (except the collateral for certificates of deposit in banks and/or savings and loans) shall be held by a thirdparty custodian/safekeeping account designated by the City Treasurer and evidenced by safekeeping receipts. Said securities shall be held in a manner that establishes the City’s right of ownership. The only exception to the foregoing shall be depository accounts and security purchases made with: LAIF, time certificates of deposit and money market mutual funds held directly with issuing institution, since the purchased securities are not deliverable.
The third-party custodian/safekeeping account shall annually provide a copy of their most recent report of internal controls and provide periodic statements of the securities owned by the City listing the specific instrument, rate, maturity and other pertinent information.
12.013.0 Diversification
The City recognizes that investment risks can result from the issuer defaults, market price changes, or various technical complications leading to temporary 119
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14 liquidity. To minimize the City’s exposure to these types of risk, the portfolio should be diversified among several types of institutions, instruments, and maturities. The Treasurer shall minimize default risk by prudently selecting only instruments and institutions, which at the time of placement have been evaluated for their financial viability and compliance with this policy. No individual transaction shall be undertaken that jeopardizes the total capital position of the overall portfolio.
The portfolio instrument composition shall be diversified to the extent feasible to avoid incurring unreasonable and avoidable risks regarding specific security types indicated in Section 9 of this investment policy. No more than five percent (5%) of the value of the City's portfolio will be placed with any single issuer, except for the U.S. Treasury/Federal agency securities, authorized pools, mutual funds, Supranationals and collateralized investments.
13.014.0 Maximum Maturities
To the extent possible, the Treasurer will attempt to match investments with anticipated cash flow requirements and investments shall have a maturity no more than five (5) years from the date of purchase.
For the purpose of these investments, the compliance with the investment percentage(s), in regards to the total investment portfolio, shall be calculated on the date the investment is acquired. If the percentage is legally compliant on the date of purchase, then compliance with the law shall have been met.
14.015.0 Internal Control
The City Treasurer shall establish and maintain a system of appropriate internal controls to ensure compliance with policies and procedures. The controls should be designed to prevent losses of public funds arising from fraud, error, or imprudent actions by employees and officers of the City. The following procedures shall generally be followed:
Proper documentation obtained from confirmation and cash disbursement wire transfers is required for each investment transaction. Timely bank reconciliation is conducted to ensure proper handling of all transactions
The investment portfolio and all related transactions are reviewed and balanced to appropriate general ledger accounts by the Finance Department at a minimum on a quarterly basis.
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15 15.016.0 Performance Standards
15.1 Investment Strategy
The investment portfolio shall be designed to attain a market-average rate of return throughout budgetary and economic cycles, taking into account the City’s risk constraints, the cash flow characteristics of the portfolio, and state and local laws, ordinances or resolutions that restrict investments.
The City may elect to sell a security prior to its maturity and record a capital gain or loss in order to manage the quality, liquidity or yield of the portfolio in response to market conditions or City’s risk preferences. If a security owned by the City is downgraded to a level below the requirements of this policy, making the security ineligible for additional purchases, the following steps will be taken:
• Any actions taken related to the downgrade by the investment manager will be communicated to the Treasurer in a timely manner. • If a decision is made to retain the security, the credit situation will be monitored and reported to the City Council.
The Treasurer shall periodically, but no less than quarterly, review the portfolio to identify investments that do not comply with this investment policy and establish protocols for reporting major and critical incidences of noncompliance to the City Council.
15.2 Benchmark
The Treasurer shall monitor and evaluate the portfolio’s performance relative to the chosen market benchmark(s), which will be included in the Treasurer’s quarterly report. The Treasurer shall select an appropriate, readily available index to use as a market benchmark. The duration of the portfolio will generally be approximately equal to the duration (typically, plus or minus 20%) of a Market Benchmark, an index selected by the City based on the City’s investment objectives, constraints and risk tolerances. . The benchmarks and investment performance will be reviewed by the Treasurer and City Manager as market conditions warrant or when the benchmarks are not met for a consecutive one-year period.
16.017.0 Investment Reporting
As suggested in California Government Code Section 53607, the investment report shall be submitted to the City Council on a quarterly basis by the Treasurer within 45 days of the end of the reporting period. The Treasurer shall review and render monthly and quarterly investment reports and include the following:
Commented [AS5]: SB 1489 (2022) ends required reporting from 30 days to 45 days.
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16 The monthly report shall include an accounting of all receipts, disbursements and fund balances.
The quarterly report shall include an itemized listing of portfolio investments by type, date of maturity, yield to maturity, issuer, par value, dollar amount invested, book value and current market value if applicable. The source of the market values will be cited.
The quarterly report will include a statement of compliance of the portfolio with the City's investment policy or an explanation as to why the portfolio is not in compliance per California Government Code Section 53646(b)(2). The quarterly report shall include a statement of compliance that the investment portfolio has the ability to meet the City's expenditure requirements for the next six months, or provide an explanation as to why sufficient money shall, or may, not be available, per California Government Code Section 53646 (b)(3).
17.018.0 Investment Policy Adoption
The City's investment policy shall be adopted by resolution by the City Council.
The policy may be reviewed annually by the City Council and any modifications to the investment policy must be approved by the City Council.
18.019.0 Exceptions
Occasionally, exceptions to some of the requirements specified in this investment policy may occur for pooled investments because of events subsequent to the purchase of investment instruments. State law is silent as to how exceptions should be corrected. Exceptions may be temporary or more lasting; they may be self-correcting or require specific action. If specific action is required, the Treasurer should determine the course of action that would correct exceptions to move the portfolio into compliance with State law and City policy. Disclosure of exceptions lasting more than 183 days shall be done in the quarterly investment report immediately following the 183 days. Decisions to correct exceptions should not expose the assets of the portfolio to undue risk and should not impair the meeting of financial obligations as they fall due. Any subsequent investments should not extend existing exceptions.
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17 19.020.0 Glossary
Asset-Backed Securities (ABS): Securities whose income payments and hence value is derived from and collateralized (or "backed") by a specified pool of underlying assets which are receivables. Pooling the assets into financial instruments allows them to be sold to general investors, a process called securitization, and allows the risk of investing in the underlying assets to be diversified because each security will represent a fraction of the total value of the diverse pool of underlying assets. The pools of underlying assets can comprise common payments credit cards, auto loans, mortgage loans, and other types of assets. Interest and principal is paid to investors from borrowers who are paying down their debt.
Banker’s Acceptance: A money market instrument created to facilitate international trade transactions. It is highly liquid and safe because the risk of the trade transaction is transferred to the bank which “accepts” the obligation to pay the investor.
Benchmark: A comparative base for measuring the performance or risk tolerance of the investment portfolio. A benchmark should represent a close correlation to the level of risk and the average duration of the portfolio’s investments.
Bond Indenture (or Trust Indenture): Written agreement specifying the terms and conditions for issuing bonds, stating the form of the bond being offered for sale, interest to be paid, the maturity date, call provisions and protective covenants, if any, collateral pledged, the repayment schedule, and other terms. It describes the legal obligations of a bond issuer and the powers of the bond trustee, who has the responsibility for ensuring that interest payments are made to registered bondholders.
Broker-Dealer: A person or a firm who can act as a broker or a dealer depending on the transaction. A broker brings buyers and sellers together for a commission. They do not take a position. A dealer acts as a principal in all transactions, buying and selling for his own account.
Buy and Hold Strategy: Investments in which management has the positive intent and ability to hold each issue until maturity.
CALLABLE: A callable security gives the issuer the option to call it from the investor prior to its maturity. The main cause of a call is a decline in interest rates. If interest rates decline, the issuer will likely call its current securities and reissue them at a lower rate of interest.
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18 Certificate of Deposit (CD): A time deposit with a specific maturity evidenced by a Certificate. Large-denomination CDs are typically negotiable.
City Treasurer: The City Treasurer is appointed by the City Manager.
Collateralization: To secure a debt in part or in full by pledge of collateral, asset pledged as security to ensure payment or performance of an obligation. Also refers to securities pledged by a bank to secure deposits of public monies.
Collateralized Mortgage Obligations (CMO: Classes of bonds that redistribute the cash flows of mortgage securities (and whole loans) to create securities that have different levels of prepayment risk, as compared to the underlying mortgage securities.
Commercial Paper: The short-term unsecured debt of corporations.
Coupon: The rate of return at which interest is paid on a bond.
Credit Risk: The risk that principal and/or interest on an investment will not be paid in a timely manner due to changes in the condition of the issuer.
Current Yield: The interest paid on an investment expressed as a percentage of the current price of the security.
Custody: Safekeeping services offered by a bank, financial institution or trust company, referred to as the “custodian.” Service normally includes the holding and reporting of the customer’s securities, the collection and disbursement of income, securities settlement and market values.
Delivery versus Payment: A type of securities transaction in which the purchaser pays for the securities when they are delivered either to the purchaser or custodian. It ensures that securities are deposited in an eligible financial institution prior to the release of funds.
Disallowed Investments: Prohibited investments include any investments not specifically authorized within this policy, inverse floaters, range notes, interestonly strips that are derived from a pool of mortgages; futures, option, all leveraged purchases, reverse repurchases, and speculations on interest rates.
Diversification: Dividing investment funds among a variety of securities offering independent returns.
Duration: A measure of the sensitivity of the price (the value of principal) of a fixed-income investment to a change in interest rates. Duration is expressed as a 124
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19 number of years. Rising interest rates means falling bond prices, while declining interest rates mean rising bond prices.
Federal Agency Obligation: A debt instrument issued by one of the federal agencies. Federal agencies are considered second in credit quality and liquidity only to U.S. Treasuries.
Federal Deposit Insurance Corporation (FDIC): The federal agency that insures bank deposits up to $250,000 per deposit at participating banking institutions. To increase consumer confidence in the banking system, the previous $100,000 insurance limit was temporarily increased to $250,000 in 2008, extended to 2013, and then permanently increased on July 21, 2010 with the passage of the Wall Street Reform and Consumer Protection Act.
Federal Reserve System: The central bank of the United States which consists of a seven-member Board of Governors, 12 regional banks, and 5,700 commercial banks that are members.
Fiduciary Funds: Funds held in a trustee or agency capacity for outside parties.
Interest Rate: The annual yield earned on an investment, expressed as a percentage.
Liquidity: Refers to the ability to rapidly convert an investment into cash without a substantial loss of value.
Laddered Portfolio: Bond investment portfolio with securities in each maturity range (e.g. monthly) over a specified period (e.g. five years).
Leverage: Investing with borrowed money with the exception that the interest earned on the investment will exceed the interest paid on the borrowed money.
Local Agency Investment Fund (LAIF): A voluntary investment program offering participating agencies the opportunity to participate in a major portfolio which daily invests hundreds of millions of dollars, using the investment expertise of the State Treasurer's Office investment staff at no additional cost to the taxpayer. Investment in LAIF, considered a short-term investment, is readily available for cash withdrawal daily.
Market Risk: Defined as market value fluctuations due to overall changes in the general level of interest rates. Adverse fluctuation possibilities shall be mitigated by limiting the maximum maturity of any one security to five years, structuring the portfolio based on historic and current cash flow analysis, and eliminating the need to sell securities prior to maturity. Also, avoiding the purchase of long-term securities for the sole purpose of short-term speculation mitigates market risk. 125
City of Santa Paula
Investment Policy
20 Market Value: The price at which a security is trading and could presumably be purchased or sold on a specific date.
Maturity: The date the principal or stated value of an investment becomes due and payable. An investment’s term or remaining maturity is measured from the settlement date to final maturity.
Modified Duration: The percent change in price for a 100-basis point change in yields. Modified duration is the best single measure of a portfolio’s or security’s exposure to market risk.
Money Market Fund: A type of safe investment comprising a variety of shortterm securities with high quality and high liquidity. The fund provides interest to shareholders and must maintain a stable net asset value (NAV) of $1 per share.
Mortgage Pass-Through Securities: A securitized participation in the interest and principal cash flows from a specified pool of mortgages. Principal and interest payments made on the mortgages are passed through to the holder of the security.
Municipal Securities: Securities issued by state and local agencies to finance capital and operating expenses.
Mutual Fund: An entity which pools the funds of investors and invests those funds in a set of securities which is specifically defined in the fund’s prospectus.
Mutual funds can be invested in various types of domestic and/or international stocks, bonds, and money market instruments, as set forth in the individual fund’s prospectus. For most large, institutional investors, the costs associated with investing in mutual funds are higher than the investor can obtain through an individually managed portfolio.
Nationally Recognized Statistical Rating Organization (NRSRO).
A credit rating agency that the Securities and Exchange Commission in the United States uses for regulatory purposes. Credit rating agencies provide assessments of an investment's risk. The issuers of investments, especially debt securities, pay credit rating agencies to provide them with ratings. The three most prominent NRSROs are Fitch, S&P, and Moody's.
National Credit Union Administration (NCUA): An independent federal agency that insures deposits at federally insured credit unions, currently up to $250,000.
Negotiable Certificates of Deposit: Typically large-denomination Certificates of Deposit that can be transferred, bought, sold, or exchanged.
Commented [AS6]: SB 1489 (2022) Clarifies maturity
measurement begins at settlement date rather than trade date.
126
City of Santa Paula
Investment Policy
21 Nominee: Registered owner of a stock or bond if difference from the beneficial owner, who acts as holder of record for securities and other assets. Typically, this arrangement is done to facilitate the transfer of securities when it is inconvenient to obtain the signature of the real owner, or the actual owner may not wish to be identified. Nominee ownership simplifies the registration and transfer of securities.
Non-Negotiable Certificates of Deposit: Certificates of Deposit that cannot be transferred, bought, sold, or exchanged.
Pooled Investments: Grouping of resources for the advantage of the participants.
Principal: The original cost of a security. It represents the amount of capital or money that the investor pays for the investment.
Portfolio: Collection of securities held by an investor.
Primary Dealer: A group of government securities dealers who submit daily reports of market activity and positions and monthly financial statements to the Federal Reserve Bank of New York and subject to its informal oversight. Primary dealers include Securities and Exchange Commission (SEC) registered securities broker-dealers, banks and a few unregulated firms.
Prime Commercial Paper: Short-term IOU, or unsecured money market obligation, issued by prime rated commercial firms and financial companies, with maturities from 2 days up to 270 days. A promissory note of the issuer used to finance current obligations and is a negotiable instrument.
Principal: (1) The face amount of par value of a debt instrument. (2) One who acts as a dealer buying or selling for his own account.
Prudent Investor Standard: An investment standard that all investments should be made with care, skill, prudence and diligence under the circumstances then prevailing, including, but not limited to, the general economic conditions and the anticipated needs of the agencyCity, that a prudent person acting in a like capacity and familiarity with those matters would use in the conduct of funds of a like character and with like aims, to safeguard the principal and maintain the liquidity needs of the agencyCity.
Safekeeping: A service to customers rendered by banks for a fee whereby securities and valuables of all types and descriptions are held in the bank’s vault for protection.
127
City of Santa Paula
Investment Policy
22 Secondary Market: A market is made for the purchase and sale of outstanding issues following the initial distribution.
Sweep Account: Short-term income fund into which all un-invested cash balances from the non-interest-bearing checking account are automatically transferred daily.
Supranational: A Supranational is a multi-national organization whereby member states transcend national boundaries or interests to share in the decision making to promote economic development in the member countries.
Third-Party Custodian: Corporate agent, usually a commercial bank, who, acting as trustee, holds securities under a written agreement for a corporate client and buys and sells securities when instructed. Custody service includes securities safekeeping, and collection of dividends and interest. The bank acts only as a transfer agent and makes no buy-sell recommendations.
Treasury Bills: A non-interest bearing discount security issued by the U.S.
Treasury to finance the national debt. Most bills are issued to mature in three months, six months, or one year.
Treasury Bonds: Long-term coupon-bearing U.S. Treasury securities issued as direct obligations of the U.S. Government and having initial maturities of more than 10 years.
Treasury Notes: Medium-term coupon-bearing U.S. Treasury securities issued as direct obligations of the U.S. Government and having initial maturities of from two to 10 years.
Trustee: (1) All governing bodies of local agencies or persons authorized (city investment officials) to make investment decisions on behalf of those local agencies investing public funds pursuant to this chapter are trustees and therefore fiduciaries subject to the prudent investor standard. (2) A financial institution with trust powers that acts in a fiduciary capacity for the benefit of the bondholders in enforcing the terms of the bond contract.
Total Rate of Return: A measure of a portfolio’s performance over time. It is the internal rate of return, which equates the beginning value of the portfolio with the ending value; it includes interest earnings, realized and unrealized gains, and losses in the portfolio.
U.S. Agencies: Federal agency securities and/or Government-sponsored enterprises.
128
City of Santa Paula
Investment Policy
23 U.S. Government Securities: Securities issued by the U.S. Government and its agencies which are either directly or indirectly backed by the full faith and credit of the United States. U.S. Government securities include Treasury Bills, Notes and Bonds. Agency securities include those issued by the Federal National Mortgage Association, Federal Home Loan Bank, and similar agencies.
Yield to Maturity: The rate of annual income return on an investment expressed as a percentage, adjusted for any discounts, and spread over the period from the date of purchase to the date of maturity.
129
To: Honorable Mayor and Members of the City Council
From: Christy Ramirez, Finance Director
Subject: TRANSPORTATION DEVELOPMENT ACT, LOCAL
TRANSPORTATIONFUND, APPORTIONMENT FOR FISCAL YEAR
2023/2024
Date: October 18, 2023
Agenda Item: 10.E
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
Adopt Resolution No. 7486 authorizing the submittal of claims for allocation of FY 23/24Transportation Development Act (TDA) funds.
BACKGROUND:
Each year the City must file a claim with Ventura County Transportation Commission for our share of Transportation Development Act (TDA) local transportation funds. This year the City’s apportionment is $1,578,226. The attached resolution authorizes the City Manager or designee to file the necessary claims for these funds and also allocate the funds into two categories. Of the $1,578,226, $514,796.07 is allocated to pay Valley Express Transit for the public transportation system, including the Dial-A-Ride system; and the balance of TDA funds ($1,063,429.93) is revenue to the City and is used for local streets and roads. The 2023/24 Budget had estimated TDA article 8(a) revenue in the amount of $1,040,000 compared to the $1,063,429.93 allocated. Staff recommends amending the current budget to increase revenues by $23,429.93, as well as allocating an additional amount in expenditures for the Citywide Street Maintenance Repair Program in an equal amount.
ANALYSIS:
The Heritage Valley Transit cost for fiscal year 2023/24 is $658,200 less the prior year carryover of $143,403.93, for a total expense of $514,796.07. This amount is transferred directly from the County to the Ventura County Transportation Commission, as the operators of Valley Express. This is noted on the claim submissions Form A, line 19-22. No additional changes are needed at this time.
The two-year budget adopted in June utilized estimated figures for both revenues and expenses related to the Local Transportation Funds, based on the initial draft budget from the County. The final figures provided above include an increase revenue projection of $23,429.93 above what was budgeted for FY 23/24. As noted, staff will return to Council with a budget 130
amendment request to address both the increased revenues as well as matching expense allocation.
Prior year funding allocated to street repair expenses in the Gas Tax fund came in under expectations. Any remaining budget will be carried over under the authorization provided by Council to the City Manager via its budget resolution.
STRATEGIC PLAN:
While this item is not a direct goal or objective in City Council's two-year strategic plan, the submission of this claim is necessary to maintain funding from the Transportation Development Act Local Transportation Fund.
FISCAL IMPACTS:
No fiscal impacts are related to the passage of this resolution. Staff will return at a later time to request a budget allocation recognizing additional revenue and expense allocation.
OPTIONS:
As alternatives to staff's recommendation, the City Council may
1. Reject the recommendation; and/or
2. Provide additional direction to staff.
ATTACHMENTS:
TDA Claim forms - FY23-24.xlsx
Resolution TDA 23-24.docx
131
Transportation Development Act
Form A - Claim Form
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
3 Address 970 E Ventura St.
Santa Paula, CA 93060
4 Name of Contact Person Christy Ramirez
5 Title of Contact Person Finance Director
6 Telephone Number of Contact Person 805-933-4211 ext. 204 7 Email Address of Contact Person [email protected]
Purpose Claimed
Local Transportation Fund
8 Article 3, Pedestrian and Bicycles (PUC § 99234) $ -
9 Article 4, Transit $ -
10 Article 4.5, Community Transit (PUC §99233.7 & § 99275) $ - 11 Article 8(a), Streets & Roads/Pedestrians & Bicycles (PUC § 99400(a)) $ 1,063,429.93 12 Article 8(b), Passenger Rail (PUC § 99400(b)) $ -
13 Article 8(c), Transit (PUC § 99400(c)) $ 514,796.07
14 Article 8(d), Transit Admin. and Planning (PUC § 99400(d)) $ - 15 Article 8(e), Transit Capital (PUC § 99400(e)) $ -
16 Article 8(f), Commuter Vanpool (PUC § 99400(f)) $ -
17 Article 8, Other $ -
18 Total LTF Claimed $ 1,578,226.00
19 Less funds released to VCTC for Valley Express
20 for Article 8c
21 for purpose of Valley Express
22 in the amount of $ 514,796.07
23 Amount of LTF to be sent to Claimant (Line 17 minus Line 21) $ 1,063,429.93 Purpose Claimed
State Transit Assistance
24 STA Transportation and Rail $ -
25 SGR State of Good Repair $ -
26 Total STA & SGR Claimed $ -
27 Authorizing Signature
28 Name of Authorizing Agent Christy Ramirez
29 Title of Authorizing Agent Finance Director
30 Date 10/10/2023
(Updated 07/07/20)
Claimant acknowledges that payment by the County Auditor-Controller of an allocation made by the Ventura County Transportation Commission (VCTC) is subject to such monies being on hand and available for distribution and to the provision that such monies are used only in accordance with the terms of the allocation instruction issued by the VCTC. Claimant also certifies that the information on the claim forms are true and accurate to the best of their knowledge and that the claimant is eligible for the funds claimed and will use them for eligible expenditures per the TDA regulations. If the STA and SGR funds claimed are based on the estimates provided by the State of California, the funds paid to the local agency will be the actual amount received and may vary from the amounts claimed.
The following individual is hereby authorized to execute for and on behalf of the named entity, and to take any action necessary for the purpose of obtaining Local Transportation Funds and/or State Transit Assistant funds.
The above named claimant hereby applies for allocations of Transportation Development Act funds for the above fiscal year for the purposes and amounts specified below:
Form A - Claim Form 132
Transportation Development Act
Form B1 - Financial Reporting Form LTF Article 3
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
Prior FY Claim FY
3 Fiscal Year 2022/2023 2023/2024
4 Beginning LTF Article 3 Fund Balance (use audited amount if available) $ 4,696.28 $ 1,488,683.87 Estimated Revenues :
5 Federal grants (provide detail in notes)
6 LTF Article 3, Pedestrians and Bicycle $ 1,487,769.00 7 LTF Unearned/Deferred Revenues $ -
8 State grants (provide detail in notes)
9 Local (specify)____________________________________
10 Other (specify)____________________________________
11 Interest $ 300.00 $ 300.00
12 Total Estimated Revenues and Fund Balances $ 1,492,765.28 $ 1,488,983.87 Estimated Expenses:
13 Construction $ 1,488,983.87
14 Maintenance $ 4,081.41
15 Planning
16 Other (provide detail in notes)
17 Total Estimated Expenses $ 4,081.41 $ 1,488,983.87
18 Surplus/Deficit End of Year $ 1,488,683.87 $ -
19 Notes and Explanations: (as applicable)
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* Line 11
* Line 13
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(Updated 07/07/20)
Operating Budget Comparison
Form B1 - Art3 133
Transportation Development Act
Form B2.1 - Financial Reporting Form LTF Article 4
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
Prior FY Claim FY Prior FY Claim FY
3 Fiscal Year 2022/2023 2023/2024 2022/2023 2023/2024
4 Beginning LTF Fund Balance (use audited amount if available) $ - $ - $ - Estimated Revenues :
5 Federal grants (provide detail in notes)
Local Transportation Funds by Article
6 LTF Article 4, Transit (PUC § 99260(a))
7 LTF Article 4, Planning (PUC § 99292)
8 LTF Article 4, Elderly and Disabled (PUC § 99260.7)
9 LTF Article 4, Railroad Corporation (PUC § 99260.5(a)) 10 LTF Article 4, Other (specify article/PUC §)________________________ 11 LTF Unearned/Deferred Revenues (specify article) _________________ 12 Fare Revenue Funds
13 Local (specify in notes)
14 Other (specify in notes)
15 Interest
16 Total Estimated Revenues and Fund Balances $ - $ - $ - $ - Estimated Expenses:
17 Eligible Operating Costs
18 Transit Operating assigned to other (specify agency in notes) 19 Transit Capital TDA (specify projects in notes)
20 Transit Capital assigned to other (specify agency in notes) 21 Other (provide detail & cite code section in notes)
22 Total Estimated Expenses $ - $ - $ - $ -
23 Surplus/Deficit End of Year $ - $ - $ - $ -
24 Notes and Explanations: (as applicable)
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* Line 7
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* Line 10
* Line 11
* Line 12
* Line 13
* Line 14
* Line 15
* Line 17
* Line 18
* Line 19
* Line 20
* Line 21
(Updated 07/07/20)
If not needed, please initial ____________ Otherwise, please provide statement below.
Operating Budget Comparison Capital Budget Comparison
If the operating budget has increased in excess of 15% above the preceeding year, or there is a substantial increase or decrease in the scope of operations or capital budget provision, please provide a statement identifying and substantiating the reason or need for the change (CCR 6632).
Form B2.1 - Art4 134
Transportation Development Act
Form B2.2 - Financial Reporting Form LTF Article 4.5
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
Prior FY Claim FY Prior FY Claim FY
3 Fiscal Year 2022/2023 2023/2024 2022/2023 2023/2024
4 Beginning LTF Fund Balance (use audited amount if available) $ - $ - $ - Estimated Revenues :
5 Federal grants (provide detail in notes)
Local Transportation Funds by Article
6 LTF Article 4.5, Community Transit (PUC §99233.7 & 99275) 7 LTF Unearned/Deferred Revenues (specify article) _____________ 8 Fare Revenue Funds
9 Local (specify in notes)
10 Other (specify in notes)
11 Interest
12 Total Estimated Revenues and Fund Balances $ - $ - $ - $ - Estimated Expenses:
13 Eligible Operating Costs
14 Transit Operating assigned to other (specify agency in notes) 15 Transit Capital TDA (specify projects in notes)
16 Transit Capital assigned to other (specify agency in notes) 17 Other (provide detail & cite code section in notes)
18 Total Estimated Expenses $ - $ - $ - $ -
19 Surplus/Deficit End of Year $ - $ - $ - $ -
20 Notes and Explanations: (as applicable)
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* Line 6
* Line 7
* Line 8
* Line 9
* Line 10
* Line 11
* Line 13
* Line 14
* Line 15
* Line 16
* Line 17
(Updated 07/07/20)
Operating Budget Comparison Capital Budget Comparison
If the operating budget has increased in excess of 15% above the preceeding year, or there is a substantial increase or decrease in the scope of operations or capital budget provision, please provide a statement identifying and substantiating the reason or need for the change (CCR 6632).
If not needed, please initial ____________ Otherwise, please provide statement below.
Form B2.2 - Art4.5 135
Transportation Development Act
Form B3.1 - Financial Reporting Form LTF Article 8a
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
Prior FY Claim FY
3 Fiscal Year 2022/2023 2023/2024
4 Beginning LTF Article 8a Fund Balance (use audited amount if available) $ 538,460.96 $ 1,145,702.53 Estimated Revenues :
5 Federal grants (provide detail in notes)
6 LTF Article 8(a), Streets and Roads (PUC §99400(a)) $ 1,105,498.17 $ 1,063,429.93 7 LTF Article 8(a), Pedestrians and Bicycles (PUC §99400(a)) $ - 8 LTF Unearned/Deferred Revenues
9 State grants (provide detail in notes)
10 Local (specify)____________________________________
11 Other (specify)___________________________________ $ - 12 Interest $ 20,000.00 $ 20,000.00
13 Total Estimated Revenues and Fund Balances $ 1,663,959.13 $ 2,229,132.46 Estimated Expenses:
14 Streets and Roads $ 518,256.60 $ 2,229,132.46
15 Bicycles and Pedestrians
16 Other (provide detail in notes)
17 Total Estimated Expenses $ 518,256.60 $ 2,229,132.46 18 Surplus/Deficit End of Year $ 1,145,702.53 $ -
19 Notes and Explanations: (as applicable)
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* Line 6
* Line 7
* Line 8
* Line 9
* Line 10
* Line 11
* Line 12
* Line 14
* Line 15
* Line 16
(Updated 06/18/20) (Updated 07/07/20)
22/23 Budget Actual
9285 Slurry Seal 5,500.00 -
9294 Sidewalk Repair 213,273 -
9297 Lighted Crosswalk 579,906 119,966
9359 Citywide Street Preservation and Maintenance
502x Streets and Repairs & Transfer to Gas Tax for Streets 673,866 352,157 200x Administration *moved overhead in here 5025-755 46,134 46,134 1,518,679 518,257
To be Carried Over 678,714
23/24 Budget Actual
9285 Slurry Seal 705,423.61
9294 Sidewalk Repair 150,000.00
9297 Lighted Crosswalk 150,000.00
502x Streets and Repairs & Transfer to Gas Tax for Streets 498,861 200x Administration *moved overhead in here 5025-755 46,134 Original Budget + Carryover 1,550,418.76 -
Budget Comparison
Form B3.1 - Art8a 136
Transportation Development Act
Form B3.1 - Financial Reporting Form LTF Article 8a
Remaining
5,500
213,273
459,941
-
-
678,714
Remaining
-
Form B3.1 - Art8a 137
Transportation Development Act
Form B3.2 - Financial Reporting Form LTF Article 8(b) to 8(f) Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
Prior FY Claim FY Prior FY Claim FY
3 Fiscal Year 2022/2023 2023/2024 2022/2023 2023/2024
4 Beginning LTF Fund Balance (use audited amount if available) $ - $ - $ - Estimated Revenues :
5 Federal grants (provide detail in notes)
Local Transportation Funds by Article
6 Article 8(b), Passenger Rail (PUC § 99400(b))
7 Article 8(c), Transit (PUC § 99400(c)) $ 387,154.83 $ 514,796.07 8 Article 8(d), Transit Admin. and Planning (PUC § 99400(d)) 9 Article 8(e), Transit Capital (PUC § 99400(e))
10 Article 8(f), Commuter Vanpool (PUC § 99400(f))
11 LTF Article 8 Other (specify) _____________________
12 LTF Unearned/Deferred Revenues (specify article) _________ 13 Fare Revenue Funds
14 Local (specify in notes)
15 Other (specify in notes)
16 Interest
17 Total Estimated Revenues and Fund Balances $ 387,154.83 $ 514,796.07 $ - $ - Estimated Expenses:
18 Eligible Operating Costs
19 Transit Operating assigned to other (specify agency in notes) $ 387,154.83 $ 514,796.07 20 Transit Capital TDA (specify projects in notes)
21 Transit Capital assigned to other (specify agency in notes) 22 Other (provide detail & cite code section in notes)
23 Total Estimated Expenses $ 387,154.83 $ 514,796.07 $ - $ - 24 Surplus/Deficit End of Year $ - $ - $ - $ -
25 Notes and Explanations: (as applicable)
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* Line 6
* Line 7
* Line 8
* Line 9
* Line 10
* Line 11
* Line 12
* Line 13
* Line 14
* Line 15
* Line 16
* Line 18
* Line 19Valley Express operated by VCTC
* Line 20
* Line 21
* Line 22
(Updated 07/07/20)
Operating Budget Comparison Capital Budget Comparison
If the operating budget has increased in excess of 15% above the preceeding year, or there is a substantial increase or decrease in the scope of operations or capital budget provision, please provide a statement identifying and substantiating the reason or need for the change (CCR 6632).
If not needed, please initial ____________ Otherwise, please provide statement below.
Form B3.2 - Art8b-f 138
Transportation Development Act
Form B4 - Financial Reporting Form STA
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
Prior FY Claim FY Prior FY Claim FY
3 Fiscal Year 2022/2023 2023/2024 2022/2023 2023/2024
4 Beginning STA Fund Balance (use audited amount if available) $ - $ - $ - $ - Estimated Revenues :
5 Federal grants (provide detail in notes)
State Transit Assistance (request/estimate)*
6 STA Operation (CCR 6730(a))
7 STA Capital (CCR 6730(b))
8 STA Rail Service (CCR 6730(c))
9 STA General Public (CCR 6731(b))
10 STA Elderly & Disabled (CCR 6731(b))
11 STA Specialized Services (CCR 6731(c))
12 STA PUC § 99314 Unearned/Deferred Revenues (at agency) 13 State - Other than TDA (provide detail in notes)
14 Fare Revenue Funds
15 Local (specify in notes)
16 Other (provide detail & cite code section in notes)
17 Interest
18 Total Estimated Revenues and Fund Balances $ - $ - $ - $ - Estimated Expenses:
19 Eligible Operating Costs
20 Transit Operating assigned to other (specify agency in notes) 21 Capital TDA (specify projects in notes)
22 Capital assigned to other (specify agency in notes)
23 Other (provide detail & cite code section in notes)
24 Total Estimated Expenses $ - $ - $ - $ -
25 Surplus/Deficit End of Year $ - $ - $ - $ -
26 Notes and Explanations: (as applicable)
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* Line 13
* Line 14
* Line 15
* Line 16
* Line 17
* Line 19
* Line 20
* Line 21
* Line 22
* Line 23
(Updated 07/07/20)
If not needed, please initial ____________ Otherwise, please provide statement below.
Operating Budget Comparison Capital Budget Comparison
* If the STA funds claimed are based on the estimates provided by the State of California, the funds paid to the local agency will be the actual amount received and may vary from the amounts claimed.
If the operating budget has increased in excess of 15% above the preceeding year, or there is a substantial increase or decrease in the scope of operations or capital budget provision, please provide a statement identifying and substantiating the reason or need for the change (CCR 6632).
Form B4 - STA 139
Transportation Development Act
Form B5 - Financial Reporting Form SGR
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
Prior FY Claim FY
3 Fiscal Year 2022/2023 2023/2024
4 Beginning SGR Fund Balance (use audited amount if available) $ - $ - Estimated Revenues :
5 Federal grants (provide detail in notes)
State Transit Assistance (request/estimate)*
6 State of Good Repair $ -
7 State of Good Repair Unearned/Deferred Revenues (at agency) 8 State - Other than TDA (provide detail in notes)
9 Local (specify in notes)
10 Other (specify in notes)
11 Interest
12 Total Estimated Revenues and Fund Balances $ - $ -
Estimated Expenses:
13 Eligible Capital Costs (specify projects in notes)
14 Other (provide detail in notes)
15 Total Estimated Expenses $ - $ -
16 Surplus/Deficit End of Year $ - $ -
17 Name(s) of SGR project for the above request: Funding Year Amount Project A 2021/2022
Project B 2022/2023
Project C 2023/2024
18 Total SGR amount request $ -
19 Notes and Explanations: (as applicable)
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(Updated 07/07/20)
Capital Budget Comparison
* If the SGR funds claimed are based on the estimates provided by the State of California, the funds paid to the local agency will be the actual amount received and may vary from the amounts claimed.
Form B5 - SGR 140
Transportation Development Act
Form C - Assurances
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
3 Article 8a; 8c; 3
Initial Assurance
4 C1 180-Day Certified Fiscal Audit:
If VCTC does NOT have a TDA audit performed on behalf of the claimant , the claimant certifies that it has submitted a satisfactory, independent fiscal audit, with required certification statement, to VCTC and to the State Controller pursuant to PUC § 99245 & CCR § 6664, for the prior year (project year minus two). Claimant assures that this audit requirement will be completed for the current fiscal year (project year minus one).
Applies to All Claims: Article 3, 4, 4.5, 8(a), 8(c), STA and SGR 5 C2 Timely and Reviewed Fiscal Audits:
Claimant staff will make every effort to provide information to the auditors in a timely manner so that the audits can be completed before the 180 day requirement. Audits will be reviewed by claimant/agency staff and are the responsibility of the agency.
Applies to All Claims: Article 3, 4, 4.5, 8(a), 8(c), STA and SGR 6 C3 State Controller Annual Report
Claimant certifies that it has submitted a State Controller's report in conformance with the uniform system of accounts and reports, to VCTC and to the State Controller, pursuant to PUC § 99243, § 99245, CCR § 6637 and/or § 6665 as applicable, for the prior year (project year minus two). Claimant assures that this report will be completed for the current fiscal year (project year minus one) in a timely manner.
Applies to All Claims: Article 3, 4, 4.5, 8(a), 8(c), STA and SGR 7 C4 Passed-through TDA Funds Retain TDA Requirements:
Claimant certifies that any TDA funds received from another agency will remain classified as TDA even when passed-through from another agency. These funds will be classified as TDA in the financial records and reported accordingly. These funds will retain TDA requirements.
Applies to All Claims: Article 3, 4, 4.5, 8(a), 8(c), STA and SGR 8 C5 Interest Accrual:
Claimant will accurately account for TDA revenues and expenses and accrue interest accordingly. Interest will be spent on allowable expenses.
Applies to All Claims: Article 3, 4, 4.5, 8(a), 8(c), STA and SGR 9 C6 Unmet Transit Needs:
Claimant certifies that all reasonable transit needs are satisfied and is eligible to receive Article 8(a) local streets and roads.
Applies to 8(a) (Streets and Roads)
10 C7 Revenue Ratios:
Pact Sets Rates:
City of Fillmore,
City of Santa Paula,
County of Ventura
Claimant is responsible for preparing the revenue ratio calculation(s) and certifies that it intends to maintain for the project year a ratio of fare revenues to operating costs of at least (a) 20 percent if the claimant is serving an urbanized area, (b) 10 percent if the claimant is serving a non-urbanized area, or (c) as determined by VCTC pursuant to CCR § 6633.2(c) and PUC § 99268. If the required ratio is not met, the "non-compliance with required revenue ratios" outlined in the TDA regulations will be implemented.
Applies to 4, 4.5, 8 (transit), STA
Claimant Assurances: (Initial Each Section Below OR N/A if not applicable to the claim) Form C - Assurances 141
Transportation Development Act
Form C - Assurances
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
3 Article 8a; 8c; 3
Initial Assurance
Claimant Assurances: (Initial Each Section Below OR N/A if not applicable to the claim) 11 C8 Revenue Ratios for Exclusive Services to Seniors and Disabled:
Pact Sets Rates:
City of Fillmore,
City of Santa Paula,
County of Ventura
Claimant filing a claim pursuant to PUC 99268.5 certifies that, for the purpose of that claim, it provides services using vehicles for the exclusive use of elderly and handicapped persons.
Applies to 4, 4.5, 8 (transit), STA
12 C9 50-Percent Allocation and Alternative Method Limitation:
The expenditure of the funds received by an operator, city or county may in no year exceed 50 percent of the amount required to meet operating, maintenance, and capital and debt service requirements of the system after deduction therefrom of approved federal grants estimated to be received. Alternatively, the operator may by allocated additional funds that could not be allocated to it because of those requirements, if it maintains, for the fiscal year, a ratio of fare revenues to operating costs as defined by § 99247 (see PUC § 99268.1, § 99268.2 and § 99405 and CCR § 6633.1).
Applies to 4, 4.5, 8 (transit), STA
13 C10 Retirement System or Private Pension Plan:
City Employee's only
Claimant filing a claim pursuant to PUC § 99260 certifies that (a) the current cost of its retirement system is fully funded with respect to the officers and employees of its public transportation system (PUC § 99271(a)); or (b) the operator is implementing a plan approved by VCTC which will fully fund the retirement system for such officers and employees within 40 years (PUC § 99271(a)); or (c) the operator has a private pension plan which sets aside and invests, on a current basis, funds sufficient to provide for the payment of future pension benefits and which is fully compliant with the requirements stated in PUC § 99272 and § 99273.
Applies to 4, 4.5, 8 (transit)
14 C11 Use of Federal Funds:
Claimant certifies that it is making full use of federal funds available under the FTA Act in accordance with PUC § 99286.7,CCR § 6754(a)(3) and/or § 6634 as applicable.
Applies to 4, 4.5, 8 (transit), STA
15 C12 Staffing:
Claimant certifies that it is in compliance with PUC § 99264 that it does not routinely staff, with two or more persons, a vehicle for public transportation purposes designed to be operated by one person.
Applies to 4, 4.5, 8 (transit)
16 C13 Reduced Fares:
Claimant certifies that if it offers reduced fares to seniors, the same reduced rate is offered to disabled persons and disabled veterans (PUC § 99155). Claimant further assures that it will honor the federal Medicare identification card or a card issued pursuant to § 22511.55 of the Vehicle Code as sufficient identification to receive reduced fares.
Applies to 4, 4.5, 8 (transit)
17 C14 CHP Certification:
Contractor
Claimant certifies that, it has on file a California Highway Patrol Certification having been conducted in the last 13 months indicating their compliance with § 1808.1 of the Vehicle Code.
Applies to 4, 4.5, 8 (transit), STA
Form C - Assurances 142
Transportation Development Act
Form C - Assurances
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
3 Article 8a; 8c; 3
Initial Assurance
Claimant Assurances: (Initial Each Section Below OR N/A if not applicable to the claim) 18 C15 Accessible Vehicles:
Claimant certifies that it is in compliance with PUC § 99155.5 regarding dial-a-ride and paratransit services being accessible to handicapped persons, and that the service be provided to persons without regard to vehicle ownership and place of residence.
Applies to 4, 4.5, 8 (transit)
19 C16 Budget Increase of 15% or more
Claimant certifies that the transit operator's operating budget has not increased more than 15% over the preceding year, and does not include a substantial increase or decrease in the scope of operations or capital budget provisions for major new fixed facilities. If the budget does include such changes, documentation is attached that identifies and substantiates the reason or need for the changes (PUC § 99266, § 99268 and CCR § 6633.1 and § 6632).
Applies to 4, 4.5, 8 (transit)
20 C17 Part-Time Employees
Claimant certifies that in accordance with PUC § 99243 and it is not precluded from employing part-time drivers or contracting with common carriers of persons operating under a franchise or license. Claimant further certifies that no person who was a full-time employee on June 28, 1979, shall have his or her employment terminated or his or her regular hours of employment, excluding overtime, reduced as a result of it employing part-time drivers or contracting with such common carriers.
Applies to STA (transit)
21 C18 Operator's Qualifying Criteria
Claimant certifies that it meets and will maintain the efficiency standards pursuant to PUC § 99314.6 when claiming State Transit Assistance funds for transit operations.
Applies to STA (transit)
The undersigned herby certifies that the above statements are true and correct. 22 Authorizing Signature:
23 Print Name and Title: Christy Ramirez
24 Date: 10/10/2023
(updated June 2019)
Form C - Assurances 143
Transportation Development Act
Form D - Capital Projects and Reserves
Line
1 Fiscal Year 2023/2024
2 Claimant City of Santa Paula
C:\Users\EASYPD~1\AppData\Local\Temp\BCL Technologies\easyPDF 8\@BCL@DC0B8074\[@[email protected]]Form D - Capital 3 Project Name
Source of
Funding Type Total Estimated Cost
Estimated
Expended Funds
to Date
Estimated Expended
Funds this Fiscal
Year
Estimated
Remaining Funds
Reserved
Expected
Completion Date Description of Project and Use of Funds 9285 Slurry Seal Art 8A $ 710,923.46 $ 710,923.46 $ - 6/30/2024 Pavement maintenance and preservation coating applications in conjunction with the annual pavement management program 9294 Sidewalk Repair Art 8A $ 363,273.00 $ 363,273.00 $ - 6/30/2024 Sidewalk grinding and replacement in conjunction with the annual repair program, which in this fiscal year will include the maintenance, modification and repair of disabled access ramps identified by the ADA Self Evaluation by DAC Consultants
9297 Lighted Crosswalk Art 8A $ 609,941.00 $ 609,941.00 $ - 6/30/2024 Existing flashing crosswalks to be removed and Rectangular Rapid Flashing Beacons (RRFBs) installed at 6 locations (3 on Main Street as a re-formulation of the former CIP for this purpose) and 3 on Highway 150 to improve crosswalk visibility and pedestrian safetySelf Evaluation by DAC Consultants
502x Streets and Repairs & Transfer to Gas Tax for Streets Art 8A $ 498,861.00 $ 498,861.00 $ - 6/30/2024 Ongoing Program - Street Repair expenses 200x Administration *moved overhead in here 5025-755 Art 8A $ 46,134.00 $ 46,134.00 $ - 6/30/2024 Overhead and purchasing expenses posted here (previously as streets)
9369 Community Bike Trail Connectivity Project Art 8C $ 1,482,877.50 $ 1,482,877.50 $ - 6/30/2024 ######################################################## $ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
$ -
4 Total $ 3,712,009.96 $ - $ 3,712,009.96 $ -
(updated June 2019)
Form D - Capital 144
Transportation Development Act
Form E - Sample Resolution
Line
1 2 ALLOCATION OF TRANSPORTATION DEVELOPMENT ACT FUNDS FOR FISCAL YEAR 2023/2024 3 NOW, THEREFORE LET IT BE RESOLVED, that the City/Agency of City of Santa Paula 4 Is authorized to execute and file an appropriate claim pursuant to the applicable rules and regulations promulgated hereunder, together with all necessary supporting documents, with the Ventura County Transportation Commission for an allocation of TDA funds in Fiscal Year 2023/2024 5 BE IT FURTHER RESOLVED that the authorized claim is for Article 3 for pedestrian and bicycle expenditures (PUC 99234) in the amount of $ -
6 BE IT FURTHER RESOLVED that the authorized claim for Article 4 for transportation purposes for public transit expenditures (PUC 99260) in the amount of $ - 7 BE IT FURTHER RESOLVED that the authorized claim for Article 4.5 for community transit expenditures (PUC 99275) in the amount of $ -
8 BE IT FURTHER RESOLVED that the authorized claim for Article 8(a) for local street and road purposes (PUC99400(a)) in the amount of $ 1,063,429.93
9 BE IT FURTHER RESOLVED that the authorized claim for Article 8(b) passenger rail purposes (PUC 99400(b)) in the amount of $ -
10 BE IT FURTHER RESOLVED that the authorized claim for Article 8(c) local transit purposes (PUC 99400(c)) in the amount of $ 514,796.07
11 BE IT FURTHER RESOLVED that the authorized claim for Article 8(d) administrative and planning purposes (PUC 99400(d)) in the amount of $ -
12 BE IT FURTHER RESOLVED that the authorized claim for Article 8(e) transit capital purposes (PUC 99400(e)) in the amount of $ -
13 BE IT FURTHER RESOLVED that the authorized claim for Article 8(f) commuter vanpool purposes (PUC 99400(f)) in the amount of $ -
BE IT FURTHER RESOLVED that the authorized claim includes 100% of available State Transit Assistance (STA) funds according to the allocations published by the State Controller's Office for local transportation planning and mass transportation purposes (PUC 99301).
BE IT FURTHER RESOLVED that the authorized claim includes 100% of available State of Good Repair funds according to the amounts published by the State Controller's Office (PUC 99313 and PUC 99314).
BE IT FURTHER RESOLVED that a copy of this resolution be transmitted to the Ventura County Transportation Commission in conjunction with the filing of the claim. 14 PASSED and ADOPTED this ______ Day of _______________ 15 (Add Authorized Signatures/Attest Statement, etc.)
Please submit copy of Agenda item AND signed resolution to VCTC as part of the Claim packet.
WHEREAS, the Transportation Development Act (TDA), as amended (Public Utilities Code Section 99200 et seq.), provides for the allocation of funds from the Local Transportation Fund (LTF) and the State Transit Assistance Fund for use by eligible claimants for various transportation and transit purposes as allowed by TDA; and, WHEREAS, pursuant to the provisions of the TDA, as amended, and pursuant to the applicable rules and regulations hereunder (California Code of Regulations Sections 6600 et seq.), a prospective claimant wishing to receive an allocation from the Local Transportation Fund and the State Transit Assistance fund shall file its claim with the Ventura County Transportation Commission.
Note: Claims can be filed for multiple articles as a combined resolution with the different claims listed or individual articles by separate resolutions for each claim. Also, if TDA Article 8 (c) Local Transit funds are being allocated or assignedto VCTC (for Valley Express) please note the assignment as a separate line item) RESOLUTION #______________
AUTHORIZING THE FILING OF A CLAIM
WITH THE VENTURA COUNTY TRANSPORTATION COMMISSION FOR
Form E - Sample Resolution 145
Transportation Development Act
Form F - Checklist
Form
Number Document Name Article 3 Bike/Ped
Article 4
Transit
Article 4.5
Community
Transit
Article 8(a)
Streets &
Roads
Article
8(b)-8(f)
Transit
STA
State of
Good
Repair
A Claim Form X X X X X X X
B Financial Reporting Form
B1 Financial Reporting, Bike/Ped (Art.3) X
B2.1 Financial Reporting, Transit (Art. 4) X
B2.2 Financial Reporting, Transit (Art. 4.5) X
B3.1 Financial Reporting, Street & Road (Art. 8a) X
B3.2 Financial Reporting, Transit (Art. 8(b)-8(f)) X
B4 Financial Reporting, Transit (STA) X
B5 Financial Reporting, Transit (SGR) X
C Assurances
C1 180-Day Certified Fiscal Audit X X X X X X X
C2 Timely, Reviewed Fiscal Audits X X X X X X X
C3 State Controller Annual Report X X X X X X X
C4 Passed-through TDA Funds X X X X X X X
C5 Interest Accrual X X X X X X X
C6 Unmet Transit Needs X
C7 Revenue Ratios X X X X
C8 Revenue Ratios Exclusive Service X X X X
C9 50-Percent Allocation Limit X X X X
C10 Retirement System X X X
C11 Use of Federal Funds X X X X
C12 Staffing X X X
C13 Reduced Fares X X X
C14 CHP Certification X X X X
C15 Accessible Vehicles X X X
C16 Budget Increase X X X
C17 Part-Time Employees X
C18 Operators Qualifying Criteria X
D Capital Projects and Reserves X X X X X X
F TDA Checklist X X X X X X X
E Local Agency Resolution X X X X X X X
E1 Agenda item for Resolution X X X X X X X
G Authorized Agent Form (State) X
H Certification and Assurances (St) X
I Board Resolution (State) X
J Project List X
Submitted by:
Signature: Name:
Title:
Date: Phone:
Email:
(updated 06/18/20)
Christy Ramirez
Finance Director
805-933-4211 ext. 204
[email protected]
Form F - Checklist 146
RESOLUTION NO. 7486
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA PAULA,
CALIFORNIA, AUTHORIZING THE FILING OF A CLAIM WITH THE
VENTURA COUNTY TRANSPORTATION COMMISSION FOR ALLOCATION
OF TRANSPORTATION DEVELOPMENT ACT FUNDS FOR FISCAL YEAR 2023/24
SECTION 1: The City Council for the City of Santa Paula does resolve as follows:
A. The Transportation Development Act (TDA), as amended (Public Utilities Code Section 99200 et seq.), provides for the allocation of funds from the Local Transportation Fund (LTF) and the State Transit Assistance Fund for use by eligible claimants for various transportation and transit purposes as allowed by TDA; and,
B. Pursuant to the provisions of the TDA, as amended, and pursuant to the applicable rules and regulations hereunder (California Code of Regulations Sections 6600 et seq.), a prospective claimant wishing to receive an allocation from the Local Transportation Fund and the State Transit Assistance fund shall file its claim with the Ventura County Transportation Commission.
SECTION 2: The City Manager, or designee, is authorized to execute and file an appropriate claim pursuant to the applicable rules and regulations promulgated hereunder, together with all necessary supporting documents, with VCTC for an allocation of TDA funds in FY 2023/24.
SECTION 3: The authorized claim for Article 8(a) for local street and road purposes (PUC 99400(a)) is in the amount of $1,063,429.93.
.
SECTION 4: The authorized claim for Article 8(c) for local street and road purposes (PUC 99400(c)) is in the amount of $514,796.07.
SECTION 5: That a copy of this resolution be transmitted to the Ventura County Transportation Commission in conjunction with the filing of the claim.
SECTION 6: The City Clerk will certify to the passage and adoption of this Resolution; will enter the same in the book of original Resolutions of said City; will make a minute of the passage and adoption thereof in the record of proceedings of the City Council of said City, in the minutes of the meeting at which the same is passed and adopted. 147
PASSED, AND ADOPTED, this 18th day of October, 2023.
_____________________
Andy Sobel, Mayor
ATTEST:
_________________________
Julie Latshaw, City Clerk
Approved as to form:
_______________________________
Monica Castillo, Interim City Attorney
Approved as to content:
_______________________________
Dan Singer, City Manager
148
To: Honorable Mayor and Members of the City Council
From: Monica Castillo, Interim City Attorney
Subject: UPDATED MANUAL OF PROCEDURAL GUIDELINES FOR THE
CONDUCT OF CITY COUNCIL AND CONSTITUENT
BODY/COMMISSION MEETINGS FOR THE CITY OF SANTA PAULA
Date: October 18, 2023
Agenda Item: 10.F
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Adopt Resolution No. 7484 approving the "Manual of Procedural Guidelines for the Conduct of City Council and Constituent Body/Commission Meetings for the City of Santa Paula.”
BACKGROUND:
In an effort to update the procedures and protocols governing Council meetings and operations, City staff prepared a draft Manual of Procedural Guidelines for the Conduct of City Council and Constituent Body/Commission Meetings for the City of Santa Paula. At study sessions held on January 18, 2023, March 1, 2023, August 9, 2023, and September 19, 2023, City staff presented the Manual to the Council for its review and direction.
At its regular meeting of October 4, 2023, the City Council directed staff to make additional revisions to the Manual and to bring back the item when the full Council was present. A copy of the Manual as revised by the Council is attached to the Resolution (Attachment A), and a redline showing edits to the draft presented to Council at its October 4th meeting is also provided (Attachment B).
ANALYSIS:
The Manual updates and modernizes the guidelines governing the conduct of Council (and subordinate body) meetings and conforms the guidelines to State and Federal law. For example, the Manual expands on the rules for disqualifying contributions to appointed (and now) elected officials (Section 8.5), as well as the removal of disruptive members of the public (Section 10.4), among others.
The Manual also provides a meeting structure to govern the order of Council business (Section 6.1) as well as a structure for the consideration of individual agenda items (Section
7.5). The Manual also contains letterhead and email policies. To avoid a Brown Act violation, 149
the email policy now addresses how Council is to respond to an email when all members are contacted by a member of the public about an issue (Section 9.4).
In addition, Section 5.1 provides an updated process for Councilmembers to add an item to the agenda, depending on whether the item is time-sensitive. For items that are not timesensitive, the Manual requires a councilmember to provide the subject to be considered in advance of the meeting to the City Manager so that it can be added to the agenda for consideration by the full Council. This avoids the resultant discussion about the merits of the issue in violation of the Brown Act and allows the City Manager to determine there are adequate city resources to prepare the item. For time-sensitive matters (matters needing Council action within 45 days and that were not known before the meeting), the matter may be placed on the agenda for consideration without going through the City Manager. These matters require the support of two councilmembers made by a motion and second at the meeting.
As referenced in Section 10.1, also attached as Exhibit A to the Manual is an updated Code of Conduct. The Code of Conduct governs how City Officials should treat one another, City staff, constituents, and others they come into contact with in representing the City of Santa Paula.
The Code of Conduct also contains provisions for enforcement against Councilmembers specifically (Exhibit A, Sections 7 & 8 [censure]), and allows for the removal of a disruptive Councilmember for a period of time needed to cool off.
STRATEGIC PLAN:
This item does not directly support an identified objective of the 2023-2025 Strategic Plan.
However, an updated Manual benefits the community by promoting orderly, ethical, and transparent governance.
FISCAL IMPACTS:
None.
OPTIONS:
The Council has the following available alternative options to Staff’s recommendations:
1. Do not approve Resolution No. 7484 and continue relying of the current procedural rules; or
2. Provide additional direction to City staff to revise provisions of the draft Manual.
ATTACHMENTS:
Attachment A - Resolution 7484.pdf
Attachment B - Redline.pdf
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To: Honorable Mayor and Members of the City Council
From: Clete Saunier, Public Works Director
Subject: ON-CALL AGREEMENTS FOR PROFESSIONAL CONSULTING
SERVICES
Date: October 18, 2023
Agenda Item: 10.G
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Authorize the City Manager to execute a three-year professional services agreement with each shortlisted, prequalified firm to provide on-call professional consulting services for FY 2023-2026, namely (1) Earth Systems Pacific; (2) Huitt Zollars, Inc.; (3) Jensen Design & Surveying, Inc.; (4) Overland, Pacific, & Cutler, LLC; (5) Pacific Coast Land Design, Inc.; (6) Water Systems Consulting, Inc.; (7) RMA Group; (8) Solved Engineering, Inc.; and (9) Union Materials Testing, Inc.
2. Authorize the City Manager or his designee to issue professional consulting services task orders in an amount not to exceed the adopted fiscal year budget or in the annual aggregate of $250,000 per consultant, whichever is less.
BACKGROUND:
On April 18, 2023, the City invited firms to submit Statement of Qualifications (“SOQ”) for consideration to be included on the shortlist of prequalified firms to provide on-call professional consulting services. Firms were invited to submit qualifications for services related to: (1) Civil Engineering, (2) Project Management, (3) Construction Management, (4) Electrical Consulting and Engineering, (5) Subsurface Utility Engineering, (6) Mechanical Engineering (7) Traffic Engineering, (8) Water and Wastewater Consulting and Engineering, (9) Geotechnical, (10) Material Testing, (11) Environmental Consulting and Monitoring, (12) Right of Way, (13) Surveying, (14) Hydrology and Stormwater and (15) Landscape Architecture. Firms were allowed to submit SOQs for multiple service disciplines.
On June 21, 2023 City Council approved a shortlist of prequalified firms. The shortlisted consultants will provide professional consulting services for the City’s Capital Improvement Program and various projects as determined necessary by staff. When services are needed, City staff will select one or more firms from the shortlist and request task order proposals for the required services. Staff will make the determination by selecting the most qualified firm that will provide the best value for the City and the most substantiated ability to complete the work. The shortlist will be in place for a 3-year term, effective upon contract approval by Council. Because the City is a General Law City, some projects and services will be subject to 260
competitive proposals from consultants on the shortlist. The City, at its own discretion, and in compliance with funding source requirements will either select consultants from the shortlist or publish a project specific request for proposals open to all. Pre-qualification of professional consultants, together with the issuance of professional services agreements provides staff with an efficient means of procuring as-needed services from a list of capable and qualified professionals.
ANALYSIS:
Twenty-five (25) consulting firms were included in the shortlist approved by City Council on June 21, 2023. Staff has been and will be presenting and recommending Council approval and contract awards for multiple groups of consultants from the shortlist. The current consultants proposed for agreement approval, together with their associated service disciplines, are contained in Table 1 below. The professional services agreement for each consultant, together with related exhibits addressing submitted qualifications and compensation rate sheets, are referenced by Attachment in Table 1.
Table 1: On-Call Professional Consulting Firms and Service Disciplines Attachment Firms Service Disciplines
1 Earth Systems Geotechnical Engineering
2 Huitt Zollars Civil Engineering
3 Jensen Design and Survey Civil Engineering, Surveying 4 Overland, Pacific & Cutler (OPC) Right of Way
5 Pacific Coast Land Design
(PCLD)
Landscape Architecture
6 Water Systems Consulting (WSC) Project and Construction Management, Water and Wastewater Engineering 7 RMA Group Geotechnical Engineering and
Materials Testing
8 Solved Engineering Electrical Engineering
9 Union Materials Testing Geotechnical Engineering and
Materials Testing
Staff is committed to responsible financial stewardship. Staff will report regularly to Council on the projects covered by the contracts. In addition, staff will ensure that no task order is issued for a Capital Improvement Project (CIP) until the CIP is approved by City Council.
STRATEGIC PLAN:
The Project supports the currently adopted Strategic Plan in achieving the following goals:
Infrastructure, Transportation & Mobility
Goal: Maintain and develop the City’s infrastructure to be safe, sustainable, innovative and cost-efficient.
FISCAL IMPACTS:
261
Individual task orders with the City Manager’s, or his designee’s approval will be separately issued, reflecting negotiated scopes of work, cost estimates and schedules for projects and services that have been adopted for the respective fiscal year. The amount for each task order shall not exceed the adopted budget for each project or professional service. The cumulative total for all work orders shall not exceed $250,000 per fiscal for each consultant. A sample Task Order is included in Exhibit B of each Attachment and associated professional services agreement.
OPTIONS:
The Council has the following available alternative options to staff’s recommendations:
1. Do not approve the three-year professional services agreements to provide on-call professional consulting services. This would result in continuing inefficiencies and delays in completing approved capital improvement projects, as well as addressing as-needed consulting services. Staff would be required to individually procure and review consultant proposals multiple times on multiple projects from firms that would have otherwise been pre-qualified to provide professional consulting services.
ATTACHMENTS:
Attachment 1 Earth Systems Pacific.pdf
Attachment 2 Huitt-Zollars, Inc..pdf
Attachment 3 Jensen Design & Surveying, Inc..pdf
Attachment 4 Overland, Pacific & Cutler LLC.pdf
Attachment 5 Pacific Coast Land Design, Inc..pdf
Attachment 6 Water Systems Consulting, Inc..pdf
Attachment 7 - RMA Group 3-Year Oncall Agreement.pdf
Attachment 8 - Solved Engineering Inc 3-Year Oncall Agreement.pdf Attachment 9 -Union Materials Testing Inc 3-Year Oncall Agreement - Initial.docx.pdf 262
Attachment 1
PROFESSIONAL SERVICES
AGREEMENT
ON-CALL SERVICES BETWEEN THE CITY OF SANTA PAULA
AND EARTH SYSTEMS PACIFIC
263
65283.00007\41669532.3
-1- PROFESSIONAL SERVICES AGREEMENT–ON CALL
PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL SERVICES BETWEEN
CITY OF SANTA PAULA
AND
EARTH SYSTEMS PACIFIC
1. PARTIES AND DATE.
This Agreement is made and entered into this 18th day of October, 2023 by and between the City of Santa Paula, a municipal corporation organized under the laws of the State of California with its principal place of business at 970 Ventura Street, Santa Paula, CA 93060, County of Ventura, State of California ("City") and Earth Systems Pacific, a California Corporation, with its principal place of business at 5917 Olivas Park Drive, Suite F, Ventura CA 93006 ("Consultant").
City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing geotechnical engineering and material testing services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the On-call Engineering and Professional Consulting Services project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional geotechnical engineering and material testing consulting services necessary for the Project described in Exhibit "A" attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “B”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 264
65283.00007\41669532.3
-2- PROFESSIONAL SERVICES AGREEMENT–ON CALL
2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one additional oneyear terms. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Fifty Thousand Dollars and no cents ($250,000.00) per fiscal year without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. 265
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Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth in each individual Task Order issued by the City. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the established schedules and deadlines.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows:
Anthony Mazzei, PE.
3.3.5 City's Representative. The City hereby designates Clete Saunier, Public Works Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Anthony Mazzei, PE, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling 266
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necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification. 267
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3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. To extent applicable, Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and 268
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regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement. 269
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.
(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
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3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
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(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its 272
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officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 273
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3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, to the extent caused by any negligent acts, errors or omissions or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and reasonable attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, 274
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without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Earth Systems Pacific
5917 Olivas Park Drive, Suite F
Ventura, CA 93003
ATTN: Anthony Mazzei, Managing Principal
City: City of Santa Paula
PO Box 569
Santa Paula, CA 93061
ATTN: Clete Saunier, Public Work Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents. 275
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3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall 276
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indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Ventura County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 277
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3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter 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 bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
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3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
3.7.22 Order of Precedence. The following order and succession of the referenced documents shall govern in the event of conflict between documents:
3.7.22.1 Amendment(s)
3.7.22.2 This Agreement
3.7.22.3 Task Orders
3.8 Federal Provisions.
FEMA financial assistance will be used to fund all or a portion of this Agreement. The Consultant shall comply with all federal requirements including, but not limited to, the following:
2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference, and Federal Contract Provisions attached hereto as Exhibit “A-1” and incorporated herein by reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Agreement, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions. With respect to any conflict between such federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT FOR ON-CALL
SERVICES BETWEEN THE CITY OF SANTA PAULA AND
EARTH SYSTEMS PACIFIC
IN WITNESS WHEREOF, each of the Parties has caused this Contract to be executed on the day and year first above written.
CITY OF SANTA PAULA EARTH SYSTEMS PACIFIC
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Dan Singer,
City Manager
Approved as to Form:
_____________________________________
Monica Castillo,
Interim City Attorney
Attested By:
Julie Latshaw,
City Clerk
280
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Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT–ON
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EXHIBIT "A"
SCOPE OF SERVICES
[Due to page volume, this exhibit is intentionally omitted. A copy of the entire agreement is available at the City Clerk’s office]
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Exhibit “A-I-1” PROFESSIONAL SERVICES AGREEMENT–ON
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EXHIBIT "A-I"
FEDERAL CONTRACT PROVISIONS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit.
1. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336) Consultant shall comply with 2 C.F.R. § 200.336 and provide the Federal Agency, Inspectors General, the Comptroller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinent to this contract for the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Consultant's personnel for the purpose of interview and discussion related to the books and records. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. The Consultant agrees to provide the Federal Agency or its authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. In compliance with the Disaster Recovery Act of 2018, the City and Consultant acknowledge and agree that no language in this contract is intended to prohibit audits or internal review by the FEMA Administrator or the Comptroller General of the United States.
2. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.326)
2.1 Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
2.1.1 The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
2.1.2 The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
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Exhibit “A-I-2” PROFESSIONAL SERVICES AGREEMENT–ON
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2.1.3 The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information.
2.1.4 The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
2.1.5 The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
2.1.6 The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
2.1.7 In the event of the Consultant's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
2.1.8 The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction 283
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Exhibit “A-I-3” PROFESSIONAL SERVICES AGREEMENT–ON
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work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
2.2 Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this contract is in excess of $150,000, Consultant shall comply with the following:
2.2.1 Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.2.2 Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.3 Appendix II to Part 200 (H) – Debarment and Suspension. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). Consultant must comply with 2 C.F.R. pt. 180, 284
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Exhibit “A-I-4” PROFESSIONAL SERVICES AGREEMENT–ON
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subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above.
Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this contract.
2.4 Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act. Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
2.5 Procurement of Recovered Materials. In the performance of this contract, Consultant shall make maximum use of products containing recovered materials that are EPAdesignated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
3. MISCELLANEOUS PROVISIONS
3.1 The Consultant shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.
3.2 This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of this contract. The Consultant will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.
3.3 Consultant acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.
3.4 The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the City, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.
3.5 General and administrative expenses shall be negotiated and must conform to the Cost Principles in 2 C.F.R. Part 200. Profit shall be negotiated as a separate element of the cost. 285
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Exhibit “A-I-5” PROFESSIONAL SERVICES AGREEMENT–ON
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To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the Consultant, the Consultant's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. Any agreement, amendment or change order for work performed on a time and materials basis shall include a ceiling price that Consultant exceeds at its own risk.
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Exhibit “B”-1 PROFESSIONAL SERVICES AGREEMENT–ON
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EXHIBIT "B"
SAMPLE TASK ORDER FORM
City of Santa Paula 970 Ventura Street / P.O. Box 569, Santa Paula, CA 93061 / (805) 525-4478
TASK ORDER #
Issued under AGREEMENT FOR SERVICES, dated __________________ Project Name:
Project Number:
Contractor Name:
Vendor Number:
Contract Number:
Account Number: XXX-X-XXXX-XXX
Date Prepared:
Project Description:
Provide ______________________ consulting services to the City of Santa Paula.
Description of Services to be Performed by Consultant under this Task Order:
The City of Santa Paula authorizes the Consultant (_______) to ____________________________________________________________________________ ____________attached ___________proposal dated _______________(Exhibit A).
Time for Completion:
The Consultant shall complete the work __months from executed Task Order.
Cost Estimate:
Task Order # __ hereby authorizes payment in the amount of $____________. This project will be completed on a time and materials basis in accordance with the Standard Agreement for Services dated _______________.
CONSULTANT/CONTRACTOR
_________________________________________ _________
Consultant Company Date
Recommended/Approved By:
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Exhibit “B”-2 PROFESSIONAL SERVICES AGREEMENT–ON
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__________________________ _________ __________________________ _________ Clete Saunier, Date Christy Ramirez, Date
Public Works Director Finance Director
________________________________________ ________
Dan Singer, Date
City Manager
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Exhibit “C”-1 PROFESSIONAL SERVICES AGREEMENT–ON CALL
EXHIBIT "C"
COMPENSATION
[Attached Behind]
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BERMUDA DUNES | FREMONT | HOLLISTER | PALMDALE | PASADENA | PERRIS | SALINAS | SAN LUIS OBISPO | SANTA BARBARA | SANTA MARIA | VENTURA
EARTH SYSTEMS
5917 Olivas Park Drive, Suite F | Ventura, CA 93003 | (805) 642-6727 | www.earthsystems.com 2023 – 2025 FEE SCHEDULE
City of Santa Paula On-Call Professional Services
This schedule presents rates for professional and technical services in the fields of geotechnical engineering, engineering geology, environmental consulting, construction observation and testing, and special inspection. Listed are charges for services most frequently performed by Earth Systems. Additional services not listed are available and can be discussed upon request; fixed-fee quotes for some services can also be provided upon request. To discuss a scope of work and fees for a specific project, please contact our office. 2023 2024 2025
PERSONNEL Hourly Rate Hourly Rate Hourly Rate
Principal Professional $225.00 ..................... $230.00 ........................ $235.00 Associate Professional $215.00 ..................... $220.00 ........................ $225.00 Senior Professional $200.00 ..................... $205.00 ........................ $210.00 Project Professional $180.00 ..................... $185.00 ........................ $190.00 Staff Professional $160.00 ..................... $165.00 ........................ $170.00 Special Inspector Prevailing Wage* $135.00 ..................... $140.00 ........................ $145.00 Technical Assistant $130.00 ..................... $135.00 ........................ $140.00 Technician Prevailing Wage* $120.00 ..................... $125.00 ........................ $130.00 Special Inspector $110.00 ..................... $115.00 ........................ $120.00 Technician $100.00 ..................... $105.00 ........................ $110.00 Clerical/Administrative $90.00 ....................... $95.00 ........................ $100.00 *Technician/Inspector Classification as defined by the State of California Department of Industrial Relations.
BASIS OF CHARGES, GENERAL
1. Field Technician services for non-prevailing wage projects on regular workdays will be subject to a 2-hour minimum charge and billed in 2-hour increments. Special inspections services and all prevailing wage project services will be subject to a 4-hour minimum charge and billed in 4-hour increments. Hourly charges will accumulate on a portal-to-portal basis. Work performed on weekends, holidays, and when work starts outside of regular business hours (before 7 a.m., after 5 p.m. or in excess of 8 hours in one day) for personnel are at time and one-half; Sundays and holidays are at double time.
2. The prevailing wage rates presented above are based on current rates established at the Department of Industrial Relations (DIR).
If, during the course of the project, prevailing wage rates are increased by DIR, the quoted rates will be adjusted to correspond to the charge. Also, please note that requirements concerning overtime, shift work, travel time, holidays, and other factors can vary for different classifications of work under prevailing wage regulations.
3. Nuclear gauge charge $13.50/hour
4. Mileage zone charge (portal to portal): $25 within 10 miles, $50 within 20 miles, $75 within 30 miles, $100 within 40 miles, $125 within 50 miles. For more remote sites, a quote can be provided.
5. Subcontractors and other expenses will be charged at cost plus 20 percent.
6. Out of town travel and expenses will be charged at cost plus 20 percent. Fixed per diem rates for specific projects can be provided upon request.
7. Minimum report charge: $250. Posting of electronic documents to project websites will be charged at clerical/administrative services rate.
8. Invoices are payable upon presentation. Invoices thirty days past due will be subject to a service charge of one and one-half percent per month.
9. Fees for depositions, hearings, and/or court appearances (as Expert Witness) are listed on a supplemental fee schedule.
10. Due to State regulations requiring electronic submittal of Certified Payroll to DIR for prevailing wage projects, a fee of $90 per project will be assessed twice a month.
11. Payments using credit card will be assigned a 3% convenience fee.
12. Rates are effective through December 31, 2023. An annual escalation rate of 3 percent will be applied to hourly rates for professional staff and non-prevailing wage services; rate increases for prevailing wage services will be based upon determinations by the State of California Department of Industrial Relations. 290
2 2023 – 2025 FEE SCHEDULE - MATERIALS TESTING
City of Santa Paula On-Call Professional Services
BASIS OF CHARGES
Rates for field work such as materials sampling, construction inspection, and field evaluation will be in accordance with the Personnel Rates listed in the basic Fee Schedule. The below listed rates apply to standard ASTM test methods. An additional hourly charge will be applied for cutting, capping, or other preparation of non-standard samples and, where noted, for steel samples.
SOILS
All prices are based on California and Modified California sample sizes (2”– 2.5” diameter) unless noted otherwise. Preparation of 3” diameter samples add $20.00. Testing of contaminated soil will be per quote. Contaminated samples will be returned to sender for proper disposal.
2023 2024 2025
Atterberg Limits/Plasticity Index (ASTM D 4318): $255.00 ............. $260.00 .......... $265.00 California Bearing Ratio, 3 points (ASTM D 1883) $755.00 ............. $785.00 .......... $790.00 California Impact (CT 216) $280.00 ............. $285.00 .......... $290.00 Consolidation, one dimensional (ASTM D 2435) $255.00 ............. $260.00 .......... $265.00 Consolidation, Timed, Per Point $105.00 ............. $110.00 .......... $115.00 Corrosivity Tests $205.00 $210.00 $215.00
Direct Shear, 3 points (ASTM D 3080) $410.00 ............. $415.00 .......... $420.00 Expansion Index Test (ASTM D 4829) $225.00 ............. $230.00 .......... $235.00 Hydrocollapse Potential Test (ASTM D 5333) $155.00 ............. $160.00 .......... $165.00 Long Hydrometer Analysis, assume specific gravity, with 200 wash $305.00 ............. $310.00 .......... $315.00 Maximum Density and Optimum Moisture: 4” Mold (ASTM D 1557 $305.00 ............. $310.00 .......... $315.00 Maximum Density and Optimum Moisture: 6” Mold (ASTM D 1557) $355.00 ............. $360.00 .......... $365.00 Moisture and Unit Weight Determination, from Ring Samples $45.00 ............... $50.00 ............ $55.00 Moisture Only (ASTM D 2216) $35.00 ............... $40.00 ............ $45.00 Permeability Tests, Constant Head or Falling Head............................................................................................ Per Quote R‐Value (ASTM D 2844, CT 301) $350.00 ............. $355.00 .......... $360.00 Sand Equivalent (ASTM D 2419, CT 217) ............................................................$170.00.............. $175.00 .......... $180.00 Short Hydrometer Analysis, assumed specific gravity, with 200 wash $205.00 ............. $210.00 .......... $215.00 Sieve Analysis, Aggregate Base/Subbase $155.00 ............. $160.00 .......... $165.00 Sieve Analysis with 200 wash (ASTM D 1140, CT 202) $205.00 ............. $215.00 .......... $220.00 Sieve Analysis, Oversize Material ................................................................................ ................................. Per Quote Specific Gravity (ASTM D 854) $180.00 ............. $185.00 .......... $190.00 Swell Test, Undisturbed $210.00 ............. $215.00 .......... $220.00 Swell Test, Remolded $235.00 ............. $240.00 .......... $245.00 Unconfined Compressive Strength, Untreated (ASTM D 2166) $180.00 ............. $185.00 .......... $190.00 Unconfined Compressive Strength, Lime or Cement Treated Material $505.00 ............. $510.00 .......... $515.00
MATERIALS LABORATORY TESTING FEES
An additional hourly charge ($100/hr.) will be applied for cutting, capping, or other preparation of non‐standard samples.All compression test fees include formal report following 28‐day tests. Formal reportsfor earlier tests will be subject to an additional report fee of $25.
AGGREGATE
Abrasion, L.A. Rattler, 100 and 500 revolutions (Small Size Aggregate) $305.00 ........... $310.00 .......... $315.00 Abrasion, L.A. Rattler, 100 and 500 revolutions (Large Size Aggregate) $565.00 ........... $570.00 .......... $575.00 Absorption, Coarse Aggregate (ASTM C 127, CT 206) $105.00 ........... $110.00 .......... $115.00 Absorption, Fine Aggregate (ASTM C 128, CT 207) $155.00 ........... $160.00 .......... $165.00 Clay Lumps and Friable Particles in Aggregate $115.00 ........... $120.00 .......... $125.00 Cleanness Value of Coarse Aggregate $155.00 ........... $160.00 .......... $165.00 291
3 2023 – 2025 FEE SCHEDULE - MATERIALS TESTING – Continued City of Santa Paula On-Call Professional Services
AGGREGATE-Continued 2023 2024 2025
Crushed Particles, Each Size $155.00 ........... $160.00 .......... $165.00 Durability Index, Coarse or Fine Aggregate $205.00 ........... $210.00 .......... $215.00 Flat and Elongated Particles in Aggregate $115.00 ........... $120.00 .......... $125.00 Organic Impurities in Fine Aggregate $105.00 ......... $110.00 .......... $115.00 Potential Reactivity of Aggregate by Chemical Method, Each Size Per Quote Sieve Analysis, Washed $215.00 ........... $220.00 .......... $225.00 Soundness, Sodium Sulfate, 5 Cycles $505.00 ........... $515.00 .......... $520.00 Specific Gravity, Coarse Aggregate $155.00 ........... $160.00 .......... $165.00 Specific Gravity, Fine Aggregate $155.00 ........... $160.00 .......... $165.00 Uncompacted Void Content of Fine Aggregate, Includes Angularity $285.00 ........... $290.00 .......... $295.00 Unit Weight of Aggregate $155.00 ........... $160.00 .......... $165.00
CONCRETE CYLINDERS, BEAMS AND CORES
Compression Test of Cast Cylinders $40.00 ............. $45.00 ............ $50.00 Compression Test of Cored Samples, Cored at Laboratory $80.00 ............. $85.00 ............ $90.00 Compression Test of Cores Delivered by Others $75.00 ............. $80.00 ............ $85.00 Compression Test of Lightweight Concrete $50.00 ............. $55.00 ............ $60.00 Grading of Shotcrete Cores, does not include coring $105.00 ........... $110.00 .......... $115.00 Density of Concrete Cylinders $80.00 ............. $85.00 ............ $90.00 Density of Hardened Concrete $110.00 ........... $115.00 .......... $120.00 Flexural Strength, Simple Beam with Third Point Loading $185.00 ........... $190.00 .......... $195.00 Shrinkage of Beams, set of 3 $415.00 ........... $420.00 .......... $425.00 Unit Weight of Lightweight Concrete $135.00 ........... $140.00 .......... $145.00 Enviro Recycle Fee/Form Stripping, Per Shotcrete Panel/Beam $70.00 ............. $75.00 ............ $80.00
MASONRY
Absorption of Block, Set of 3 $170.00 ........... $175.00 .......... $180.00 Compression Test, 2” x 4” Mortar Cylinders $50.00 ............. $55.00 ............ $60.00 Compression Test, 3” x 3” x 6” Grout Samples $50.00 ............. $55.00 ............ $60.00 Compression Test on Block, Set of 3 $170.00 ........... $175.00 .......... $180.00 Compression Test on Grouted Prisms, Includes Cutting $305.00 ........... $310.00 .......... $315.00 Compression Test on Masonry Cores $85.00 ............. $90.00 ............ $95.00 Coring of Grouted Masonry by Subcontractor.................................................................................................... cost +20% Masonry Shrinkage, Set of 3 $240.00 ........... $245.00 .......... $250.00 Moisture Content of Block as Received, Set of 3 $105.00 ........... $110.00 .......... $115.00 Shear Test on Masonry Cores, 2 faces $180.00 ........... $185.00 .......... $195.00 Specific Gravity and Unit Weight of Block, Set of 3 $100.00 ......... $105.00 .......... $110.00 Unit Weight of Block, set of 3 $170.00 ........... $175.00 .......... $180.00 Coring of Grouted Masonry by Subcontractor ........................................................................................ . ...... cost + 10% Enviro Recycling Fee, Per Masonry Prism $3.00................ $4.00 .............. $5.00 Enviro Recycling Fee, Per Mortar or Grout Sample $3.00................ $4.00 .............. $5.00
ASPHALTIC CONCRETE
Bulk Specific Gravity of Compacted Specimens and Core Samples $55.00 ............. $60.00 ............ $65.00 Compaction of AC, CA Kneading Compactor, Set of 3 $405.00 ........... $410.00 ......... $415.00 Extraction of Oil from AC Mixtures $255.00…… $260.00……… $265.00 Extraction of Oil from Rubberized Mixtures $320.00……… $325.00……… $330.00 Gyratory Compactor, Per Set of Field Mixed Asphalt $505.00 ........... $510.00 .......... $515.00 292
4 2023 – 2025 FEE SCHEDULE - MATERIALS TESTING – Continued City of Santa Paula On-Call Professional Services
ASPHALTIC CONCRETE-Continued 2023 2024 2025
Hamburg Wheel Tracker Test, Per Set of Field Mixed Asphalt $755.00 ............. $760.00 ............ $765.00 Hazardous Waste Handling Charge for Extracted Oils $35.00 ............... $40.00 .............. $45.00 Ignition Oven Binder Content Correction Value, per mix $855.00 ............. $860.00 ............ $865.00 Ignition Oven Binder Content after initial correction value $175.00 ............. $180.00 ............ $185.00 Ignition Oven Gradation Correction Value, Per Mix Design Per Quote Ignition Oven Gradation Correction after initial correction value $275.00………. $280.00…….. $285.00 Moisture Content $45.00 ............... $50.00 .............. $55.00 Sieve Analysis of Extracted Aggregate $215.00 ............. $220.00 ............ $225.00 Specific Gravity, Theoretical Maximum, Rice Method $155.00 ............. $160.00 ............ $165.00 Stabilometer, Hveem S-Value, Set of 3 $180.00* ........... $185.00* .......... $190.00* Enviro Recycling Fee, Per Sample $3.00 ................. $4.00 ................ $5.00 Enviro Recycling Fee for Extracted Oils $50.00 ............... $55.00 .............. $60.00 * Fee assumes CT 308 is run concurrently
MISCELLANEOUS TESTING AND EQUIPMENT CHARGES (Does Not Include Personnel) Anchor Pull Test Equipment (Per Day) $155.00………. $160.00. $165.00 High Strength Bolt, Nut, Washer Testing............................................................................... .................Per Quote + 10% Hand Auger/Sampler Equipment (Per Day) $80.00 $85.00 ............... $90.00 Manometer (Liquid Level) Survey Equipment (Per Day) $155.00 $160.00 .............. $165.00 Nuclear Gauge (Hourly Rate) $13.50............. $14.50........... $15.50 Rebound Hammer (Schmidt Hammer) (Per Day) $80.00 ............... $85.00 ................ $90.00 Pachometer (Per Day) $205.00............$210.00 $215.00 Reinforcing Steel Tensile and Bend Test, No. 3 – No.9 Bars $180.00............$185.00........ .$190.00 Reinforcing Steel Tensile and Bend Test, No. 10 Bars and larger..............................................................Per Quote + 10% Skidmore Bolting Calibration Equipment (Per Day) $255.00 .$260.00 ............ $265.00 Torque Wrench $80.00 ........... $85.00 $90.00
Per Diem ............................................................................................................................................................. Cost +10% DIR Compliance/eCPR, (Per Hour) $90.00............. .. $95.00.............. .$100.00 DSA Box Posting, (Per Week) $90.00............ .$95.00.. $100.00 293
EARTH SYSTEMS
1680 Illinois Avenue, Suite 20 | Perris, CA 92571 | (951) 928-9799 | www.earthsystems.com | www.earthsystems.com
Non-Prevailing Wage
Principal Professional $294.88 $303.73 $312.84
Classifica�on 2023 2024 2025
Associate Professional $217.48 $224.01 $230.73
Senior Professional $211.42 $217.77 $224.30
Project Professional $166.04 $171.01 $176.15
Staff Professional $164.85 $169.79 $174.88
Special Inspector $127.35 $131.17 $135.11
Technician
Clerical/Administra�ve $90.09 $92.79 $95.58
EXHIBIT 10-H COST PROPOSAL/FAR RATES - City of Santa Paula 9/27/2023
$98.79 $101.76 $104.81
Prevailing Wage
Technician(S221 G1) $246.71 $259.04 $272.00
Classifica�on 2023 2024 2025
Special Inspector(S221 G2)
Prevailing Wage Classifica�ons calculated per DIR regula�ons $253.32 $265.99 $279.29
294
Attachment 2
PROFESSIONAL SERVICES
AGREEMENT
ON-CALL SERVICES BETWEEN THE CITY OF SANTA PAULA
AND HUITT-ZOLLARS, INC.
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CITY OF SANTA PAULA
PROFESSIONAL SERVICES AGREEMENT
ON-CALL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
HUITT-ZOLLARS, INC.
1. PARTIES AND DATE.
This Agreement is made and entered into this 18th day of October, 2023, by and between the City of Santa Paula, a municipal corporation organized under the laws of the State of California with its principal place of business at 970 Ventura Street, Santa Paula, CA 93060, County of Ventura, State of California ("City") and Huitt-Zollars Inc, a Texas Corporation authorized to do business in California ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing Civil Engineering services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the On-Call Engineering and Professional Consulting Services project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional Civil Engineering consulting services necessary for the Project described in Exhibit "A" attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “B”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one additional one296 65283.00007\41669622.2
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year term. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Fifty Thousand Dollars and no cents ($250,000.00) per fiscal year without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, 297
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unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth in each individual Task Order issued by the City. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the established schedules and deadlines.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Kevin Carter, Vice President.
3.3.5 City's Representative. The City hereby designates Clete Saunier, Public Works Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Kevin Carter, Vice President, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants 298
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shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification. 299
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3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and 300
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regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement. 301
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they 302
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would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. 303
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(D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 304
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3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel 305
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satisfactory to the City, approval of which will not be unreasonably withheld), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must 306
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include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Huitt-Zollard, Inc
90 E. Thousand Oaks Blvd Suite 201
Thousand Oaks, CA 91360-5757
ATTN: Kevin Carter, Vice president
City: City of Santa Paula
PO Box 569
Santa Paula, CA 93061
ATTN: Clete Saunier, Public Works Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & 307
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Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal 308
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action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Ventura County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be 309
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construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter 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 bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
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3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
3.7.22 Order of Precedence. The following order and succession of the referenced documents shall govern in the event of conflict between documents:
3.7.22.1 Amendment(s)
3.7.22.2 This Agreement
3.7.22.3 Task Orders
3.8 Federal Provisions.
FEMA financial assistance will be used to fund all or a portion of this Agreement. The Consultant shall comply with all federal requirements including, but not limited to, the following:
2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference, and Federal Contract Provisions attached hereto as Exhibit “A-1” and incorporated herein by reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Agreement, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions. With respect to any conflict between such federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE]
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Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT–ON
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EXHIBIT "A"
SCOPE OF SERVICES
[Due to page volume, this exhibit is intentionally omitted. A copy of the entire agreement is available at the City Clerk’s office]
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Exhibit “A-I-1” PROFESSIONAL SERVICES AGREEMENT–ON
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EXHIBIT "A-I"
FEDERAL CONTRACT PROVISIONS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit.
1. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336) Consultant shall comply with 2 C.F.R. § 200.336 and provide the Federal Agency, Inspectors General, the Comptroller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinent to this contract for the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Consultant's personnel for the purpose of interview and discussion related to the books and records. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. The Consultant agrees to provide the Federal Agency or its authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. In compliance with the Disaster Recovery Act of 2018, the City and Consultant acknowledge and agree that no language in this contract is intended to prohibit audits or internal review by the FEMA Administrator or the Comptroller General of the United States.
2. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.326)
2.1 Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
2.1.1 The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
2.1.2 The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
2.1.3 The Consultant will not discharge or in any other manner discriminate 314
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against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information.
2.1.4 The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
2.1.5 The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
2.1.6 The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
2.1.7 In the event of the Consultant's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
2.1.8 The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above 315
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equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
2.2 Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this contract is in excess of $150,000, Consultant shall comply with the following:
2.2.1 Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.2.2 Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.3 Appendix II to Part 200 (H) – Debarment and Suspension. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these 316
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regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above.
Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this contract.
2.4 Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act. Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
2.5 Procurement of Recovered Materials. In the performance of this contract, Consultant shall make maximum use of products containing recovered materials that are EPAdesignated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
3. MISCELLANEOUS PROVISIONS
3.1 The Consultant shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.
3.2 This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of this contract. The Consultant will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.
3.3 Consultant acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.
3.4 The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the City, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.
3.5 General and administrative expenses shall be negotiated and must conform to the Cost Principles in 2 C.F.R. Part 200. Profit shall be negotiated as a separate element of the cost.
To establish a fair and reasonable profit, consideration must be given to the complexity of the 317
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work to be performed, the risk borne by the Consultant, the Consultant's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. Any agreement, amendment or change order for work performed on a time and materials basis shall include a ceiling price that Consultant exceeds at its own risk.
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EXHIBIT "B"
SAMPLE TASK ORDER FORM
City of Santa Paula 970 Ventura Street / P.O. Box 569, Santa Paula, CA 93061 / (805) 525-4478
TASK ORDER #
Issued under AGREEMENT FOR SERVICES, dated __________________ Project Name:
Project Number:
Contractor Name:
Vendor Number:
Contract Number:
Account Number: XXX-X-XXXX-XXX
Date Prepared:
Project Description:
Provide ______________________ consulting services to the City of Santa Paula.
Description of Services to be Performed by Consultant under this Task Order:
The City of Santa Paula authorizes the Consultant (_______) to ____________________________________________________________________________ ____________attached ___________proposal dated _______________(Exhibit A).
Time for Completion:
The Consultant shall complete the work __ months from executed Task Order.
Cost Estimate:
Task Order # __ hereby authorizes payment in the amount of $____________. This project will be completed on a time and materials basis in accordance with the Standard Agreement for Services dated _______________.
CONSULTANT/CONTRACTOR
_________________________________________ _________
Consultant Company Date
Recommended/Approved By:
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__________________________ _________ ___________________________ _________ Clete Saunier, Date Christy Ramirez, Date
Public Works Director Finance Director
________________________________________ ________
Dan Singer, Date
City Manager
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EXHIBIT "C"
COMPENSATION
[Attached Behind]
321
City of Santa Paula On-Call Engineering Professional Consulting Services p 18
6.HOURLY RATE SCHEDULE
Engineering/Architecture Survey
Principal $ 325.00 Survey Manager $ 280.00
Sr. Project Manager $ 300.00 Sr. Project Surveyor $ 220.00 Design Principal $ 260.00 Project Surveyor $ 155.00
QA Manager $ 250.00 Survey Technician $ 125.00
Project Manager $ 250.00
Sr. Civil Engineer $ 240.00
Sr. Structural Engineer $ 270.00 Survey Crews
Sr. Mechanical Engineer $ 250.00
Sr. Electrical Engineer $ 225.00 1-Person Survey Crew $ 200.00 Civil Engineer $ 185.00 2-Person Survey Crew $ 305.00
Structural Engineer $ 195.00 3-Person Survey Crew $ 395.00 Mechanical Engineer $ 180.00
Electrical Engineer $ 180.00
Plumbing Engineer $ 180.00 Construction
EIT $ 160.00
Sr. Architect $ 215.00 Construction Manager $ 180.00
Sr. NL Architectural Staff $ 200.00 Resident Engineer $ 165.00 Architect $ 200.00 Inspector/Owner's Representative $ 130.00 Architect Intern 3 $ 175.00 Sr. Project Representative $ 125.00 Architect Intern 2 $ 135.00 Resident Project Representative $ 100.00 Architect Intern 1 $ 120.00
Sr. Landscape Architect $ 225.00
Landscape Architect $ 160.00
Landscape Architect Intern $ 120.00 Administrative
Sr. Designer $ 195.00 Sr. Project Support $ 120.00
Designer $ 160.00 Project Support $ 110.00
Sr. CADD Technician $ 145.00
CADD Technician $ 120.00
Interior Design Reimbursable Expenses
Sr. Interior Designer $ 170.00 Consultants Cost + 10%
Interior Designer $ 120.00 Other Direct Costs Cost + 10% Interior Designer Intern $ 105.00 Mileage IRS Standard Business Mileage Rate Southern California
2023
HOURLY RATE SHEET
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Attachment 3
PROFESSIONAL SERVICES
AGREEMENT
ON-CALL SERVICES BETWEEN THE CITY OF SANTA PAULA
AND JENSEN DESIGN & SURVEYING, INC.
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CITY OF SANTA PAULA
PROFESSIONAL SERVICES AGREEMENT
ON-CALL SERVICES
AND
JENSEN DESIGN & SURVEYING, INC.
1. PARTIES AND DATE.
This Agreement is made and entered into this 18th day of October, 2023 by and between the City of Santa Paula, a municipal corporation organized under the laws of the State of California with its principal place of business at 970 Ventura Street, Santa Paula, CA 93060, County of Ventura, State of California ("City") and Jensen Design & Surveying, Inc., a California Corporation, with its principal place of business at 1672 Donlon Street, Ventura, CA 93003 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing civil engineering and surveying services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the On-Call Engineering and Professional Consulting Services project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional civil engineering and surveying consulting services necessary for the Project described in Exhibit "A" attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “B”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one additional oneyear terms.***] The Parties may, by mutual, written consent, extend the term of this Agreement if 324
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necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Fifty Thousand Dollars and no cents ($250,000.00) per fiscal year without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 325
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3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth in each individual Task Order issued by the City. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the established schedules and deadlines.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows:Kinsey Hensley, Vice President –Engineering Services.
3.3.5 City's Representative. The City hereby designates Clete Saunier, Public Works Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates [Kinsey Hensley, Vice President – Engineering Services, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and 326
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approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any 327
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manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 328
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3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
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(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
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3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. 331
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(D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 332
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3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel 333
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of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must 334
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include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Jensen Design & Surveying, Inc.1672 Donlon
StreetVentura, CA 93003
ATTN: Kinsey Hensley, Vice Present – Engineering
Services
City: City of Santa Paula
PO Box 569
Santa Paula, CA 93061
ATTN: Clete Saunier, Public Works Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & 335
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Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal 336
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action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Ventura County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be 337
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construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter 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 bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
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3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
3.7.22 Order of Precedence. The following order and succession of the referenced documents shall govern in the event of conflict between documents:
3.7.22.1 Amendment(s)
3.7.22.2 This Agreement
3.7.22.3 Task Orders
3.8 Federal Provisions.
FEMA financial assistance will be used to fund all or a portion of this Agreement. The Consultant shall comply with all federal requirements including, but not limited to, the following:
2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference, and Federal Contract Provisions attached hereto as Exhibit “A-1” and incorporated herein by reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Agreement, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions. With respect to any conflict between such federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO PROFESSiONAしSERVICES AGR睦MENT FOR ON"CALし SERViCES BETWEEN THE CiTY OF SANTA PAULA AND
JENSEN DESIGN & SURVEYING, lNC.
iN Wi丁NESS WHEREOF’eaCh of the Pa巾es has caused this Contract to be executed On the day and year fi「st above w皿en.
CITY OF SANTA PAULA
AppIOVed By
Dan Singer,
City Manager
Approved as fo Fom:
Monica Cas刷o,
interim City Atto「ney
A#ested By
Juiie Latshaw,
City Clerk
JENSEN DESiGN & SURVEYiNG, INC.
[If Corporation, ¶NO SIGNATURES,
President OR Vice P「esident 4ue Sec「eta「y
OR T「easu「er REQUIRED]
Printed Name:
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p「int。dNam。‥ L ハ0.命「
340
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Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT–ON
CALL
EXHIBIT "A"
SCOPE OF SERVICES
[Due to page volume, this exhibit is intentionally omitted. A copy of the entire agreement is available at the City Clerk's office]
341
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Exhibit “A-I-1” PROFESSIONAL SERVICES AGREEMENT–ON
CALL
EXHIBIT "A-I"
FEDERAL CONTRACT PROVISIONS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit.
1. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336) Consultant shall comply with 2 C.F.R. § 200.336 and provide the Federal Agency, Inspectors General, the Comptroller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinent to this contract for the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Consultant's personnel for the purpose of interview and discussion related to the books and records. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. The Consultant agrees to provide the Federal Agency or its authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. In compliance with the Disaster Recovery Act of 2018, the City and Consultant acknowledge and agree that no language in this contract is intended to prohibit audits or internal review by the FEMA Administrator or the Comptroller General of the United States.
2. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.326)
2.1 Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
2.1.1 The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
2.1.2 The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
2.1.3 The Consultant will not discharge or in any other manner discriminate 342
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against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information.
2.1.4 The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
2.1.5 The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
2.1.6 The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
2.1.7 In the event of the Consultant's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
2.1.8 The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above 343
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equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
2.2 Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this contract is in excess of $150,000, Consultant shall comply with the following:
2.2.1 Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.2.2 Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.3 Appendix II to Part 200 (H) – Debarment and Suspension. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these 344
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regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above.
Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this contract.
2.4 Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act. Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
2.5 Procurement of Recovered Materials. In the performance of this contract, Consultant shall make maximum use of products containing recovered materials that are EPAdesignated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
3. MISCELLANEOUS PROVISIONS
3.1 The Consultant shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.
3.2 This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of this contract. The Consultant will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.
3.3 Consultant acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.
3.4 The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the City, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.
3.5 General and administrative expenses shall be negotiated and must conform to the Cost Principles in 2 C.F.R. Part 200. Profit shall be negotiated as a separate element of the cost.
To establish a fair and reasonable profit, consideration must be given to the complexity of the 345
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work to be performed, the risk borne by the Consultant, the Consultant's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. Any agreement, amendment or change order for work performed on a time and materials basis shall include a ceiling price that Consultant exceeds at its own risk.
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EXHIBIT "B"
SAMPLE TASK ORDER FORM
City of Santa Paula 970 Ventura Street / P.O. Box 569, Santa Paula, CA 93061 / (805) 525-4478
TASK ORDER #
Issued under AGREEMENT FOR SERVICES, dated __________________ Project Name:
Project Number:
Contractor Name:
Vendor Number:
Contract Number:
Account Number: XXX-X-XXXX-XXX
Date Prepared:
Project Description:
Provide ______________________ consulting services to the City of Santa Paula.
Description of Services to be Performed by Consultant under this Task Order:
The City of Santa Paula authorizes the Consultant (_______) to ____________________________________________________________________________ ____________attached ___________proposal dated _______________(Exhibit A).
Time for Completion:
The Consultant shall complete the work __ months from executed Task Order.
Cost Estimate:
Task Order # __ hereby authorizes payment in the amount of $____________. This project will be completed on a time and materials basis in accordance with the Standard Agreement for Services dated _______________.
CONSULTANT/CONTRACTOR
_________________________________________ _________
Consultant Company Date
Recommended/Approved By:
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_______________________________ _________ _______________________________ _________
Clete Saunier, Date Christy Ramirez,
Date
Public Works Director Finance Director
________________________________________ ________
Dan Singer, Date
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EXHIBIT "C"
COMPENSATION
349
QUALIFICATIONS FOR ON CALL ENGINEERING AND CONSULTING
17 5.0 HOURLY RATE SCHEDULE
350
FEE SCHEDULE & BILLING TERMS
BILLING RATES EFFECTIVE JUNE 1, 2023
Fee charges are based on the staff level involved at the following rates:
ENGINEERING:
PRINCIPAL ENGINEER,
CEO/PRESIDENT
$ 240 /hr.
V.P. OF ENGINEERING $ 215 /hr.
SENIOR CIVIL ENGINEER II $ 205 /hr.
SENIOR CIVIL ENGINEER I $ 190 /hr.
SENIOR PROJECT MANAGER $ 190 /hr.
CIVIL ENGINEER II $ 180 /hr.
CIVIL ENGINEER I $ 170 /hr.
STAFF ENGINEER $ 160 /hr.
ENGINEERING TECHNICIAN III $ 145 /hr.
ENGINEERING TECHNICIAN II $ 130 /hr.
ENGINEERING TECHNICIAN I $ 120 /hr.
FLOODPLAIN MANAGEMENT
ENGINEER
$ 175 /hr.
PLANNING:
V.P. OF PLANNING $ 210 /hr.
SENIOR PLANNER II $ 185 /hr.
SENIOR PLANNER I $ 175 /hr.
PLANNER III $ 165 /hr.
PLANNER II $ 155 /hr.
PLANNER I $ 145 /hr.
PLANNING TECHNICIAN II $ 135 /hr.
PLANNING TECHNICIAN I $ 125 /hr.
EXPERT WITNESS /
DEPOSITION RATES:
Hourly rate for work involving actual expenses
in court (4-hour minimum), giving depositions
or similar expert testimony, will be billed $500
per hour regardless of job classification
SURVEY:
SENIOR LICENSED LAND SURVEYOR $ 205 /hr.
LICENSED LAND SURVEYOR II $ 195 /hr.
LICENSED LAND SURVEYOR I $ 185 /hr.
SENIOR PROJECT SURVEYOR $ 175 /hr.
PROJECT SURVEYOR II $ 165 /hr.
PROJECT SURVEYOR I $ 155 /hr.
SURVEY TECHNICIAN III $ 150 /hr.
SURVEY TECHNICIAN II $ 140 /hr.
SURVEY TECHNICIAN I $ 130 /hr.
1-MAN SURVEY CREW $ 195 /hr.
2-MAN SURVEY CREW $ 280 /hr.
3-MAN SURVEY CREW $ 350 /hr.
DRONE SERVICES:
DRONE FLIGHT CHARGES $ 50 /acre
(50 acre min)
GENERAL:
ASSISTANT PROJECT MANAGER $ 110 /hr.
RESEARCH/OFFICE ASSISTANT $ 105 /hr.
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Attachment 4
PROFESSIONAL SERVICES
AGREEMENT
ON-CALL SERVICES BETWEEN THE CITY OF SANTA PAULA
AND OVERLAND, PACIFIC & CUTLER LLC
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PROFESSIONAL SERVICES AGREEMENT
ON-CALL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
OVERLAND, PACIFIC & CUTLER LLC
1. PARTIES AND DATE.
This Agreement is made and entered into this 18th day of October, 2023, by and between the City of Santa Paula, a municipal corporation organized under the laws of the State of California with its principal place of business at 970 Ventura Street, Santa Paula, CA 93060, County of Ventura, State of California ("City") and Overland, Pacific & Cutler LLC, a Delaware limited liability company registered to do business in California, with an office located at 5000 Airport Plaza Dr., Ste. 250, Long Beach, CA 90815 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing right of way services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the On-Call Engineering and Professional Consulting Services project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional right of way consulting services necessary for the Project described in Exhibit "A" attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “B”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at 353
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Attachment 5
PROFESSIONAL SERVICES
AGREEMENT
ON-CALL SERVICES BETWEEN THE CITY OF SANTA PAULA
AND PACIFIC COAST LAND DESIGN, INC.
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PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL SERVICES BETWEEN
CITY OF SANTA PAULA
AND PACIFIC COAST LAND DESIGN, INC.
1. PARTIES AND DATE.
This Agreement is made and entered into this 18th day of October, 2023, by and between the City of Santa Paula, a municipal corporation organized under the laws of the State of California with its principal place of business at 970 Ventura Street, Santa Paula, CA 93060, County of Ventura, State of California ("City") and Pacific Coast Land Design, Inc., a California Corporation, with its principal place of business at 461 East Main Street, Ventura CA, 93001 ("Consultant").
City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing landscape architecture services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the On-Call Engineering and Professional Services project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional landscape architect consulting services necessary for the Project described in Exhibit "A" attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “B”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one additional one-year terms.***] The Parties may, by mutual, written consent, extend the term of this Agreement if 382
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necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Fifty Thousand Dollars and no cents ($250,000.00) per fiscal year without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 383
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3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth in each individual Task Order issued by the City. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the established schedules and deadlines.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Mike Zielsdorf, Principal.
3.3.5 City's Representative. The City hereby designates Clete Saunier, Public Works Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Mike Zielsdorf, Principal, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and 384
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approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any 385
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manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 386
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3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
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(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
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3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. 389
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(D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 390
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3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel 391
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of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must 392
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include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Pacific Coast Land Design, Inc.
461 East Main Street
Ventura, CA 93001
ATTN: Mike Zielsdorf, Principal
City: City of Santa Paula
PO Box 569
Santa Paula, CA 93061
ATTN: Clete Saunier, Public Works Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & 393
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Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal 394
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action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Ventura County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be 395
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construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter 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 bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
396
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-16- PROFESSIONAL SERVICES AGREEMENT–ON CALL
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
3.7.22 Order of Precedence. The following order and succession of the referenced documents shall govern in the event of conflict between documents:
3.7.22.1 Amendment(s)
3.7.22.2 This Agreement
3.7.22.3 Task Orders
3.8 Federal Provisions.
FEMA financial assistance will be used to fund all or a portion of this Agreement. The Consultant shall comply with all federal requirements including, but not limited to, the following:
2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference, and Federal Contract Provisions attached hereto as Exhibit “A-1” and incorporated herein by reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Agreement, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions. With respect to any conflict between such federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE]
397
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-17- PROFESSIONAL SERVICES AGREEMENT–ON CALL
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT FOR ON-CALL
SERVICES BETWEEN THE CITY OF SANTA PAULA AND
PACIFIC COAST LAND DESIGN, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Contract to be executed on the day and year first above written.
CITY OF SANTA PAULA PACIFIC COAST LAND DESIGN, INC.
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Dan Singer,
City Manager
Approved as to Form:
_____________________________________
Monica Castillo, Interim City Attorney
Attested By:
Julie Latshaw,
City Clerk
398
65283.00007\41669535.2
Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT–ON
CALL
EXHIBIT "A"
SCOPE OF SERVICES
[Due to page volume, this exhibit is intentionally omitted. A copy of the entire agreement is available at the City Clerk’s office]
399
65283.00007\41669535.2
Exhibit “A-I-1” PROFESSIONAL SERVICES AGREEMENT–ON
CALL
EXHIBIT "A-I"
FEDERAL CONTRACT PROVISIONS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit.
1. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336) Consultant shall comply with 2 C.F.R. § 200.336 and provide the Federal Agency, Inspectors General, the Comptroller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinent to this contract for the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Consultant's personnel for the purpose of interview and discussion related to the books and records. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. The Consultant agrees to provide the Federal Agency or its authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. In compliance with the Disaster Recovery Act of 2018, the City and Consultant acknowledge and agree that no language in this contract is intended to prohibit audits or internal review by the FEMA Administrator or the Comptroller General of the United States.
2. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.326)
2.1 Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
2.1.1 The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
2.1.2 The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
400
65283.00007\41669535.2
Exhibit “A-I-2” PROFESSIONAL SERVICES AGREEMENT–ON
CALL
2.1.3 The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information.
2.1.4 The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
2.1.5 The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
2.1.6 The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
2.1.7 In the event of the Consultant's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
2.1.8 The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction 401
65283.00007\41669535.2
Exhibit “A-I-3” PROFESSIONAL SERVICES AGREEMENT–ON
CALL
work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
2.2 Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this contract is in excess of $150,000, Consultant shall comply with the following:
2.2.1 Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.2.2 Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.3 Appendix II to Part 200 (H) – Debarment and Suspension. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). Consultant must comply with 2 C.F.R. pt. 180, 402
65283.00007\41669535.2
Exhibit “A-I-4” PROFESSIONAL SERVICES AGREEMENT–ON
CALL
subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above.
Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this contract.
2.4 Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act. Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
2.5 Procurement of Recovered Materials. In the performance of this contract, Consultant shall make maximum use of products containing recovered materials that are EPAdesignated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
3. MISCELLANEOUS PROVISIONS
3.1 The Consultant shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.
3.2 This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of this contract. The Consultant will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.
3.3 Consultant acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.
3.4 The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the City, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.
3.5 General and administrative expenses shall be negotiated and must conform to the Cost Principles in 2 C.F.R. Part 200. Profit shall be negotiated as a separate element of the cost. 403
65283.00007\41669535.2
Exhibit “A-I-5” PROFESSIONAL SERVICES AGREEMENT–ON
CALL
To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the Consultant, the Consultant's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. Any agreement, amendment or change order for work performed on a time and materials basis shall include a ceiling price that Consultant exceeds at its own risk.
404
65283.00007\41669535.2
Exhibit “B”-1 PROFESSIONAL SERVICES AGREEMENT–ON
CALL
EXHIBIT "B"
SAMPLE TASK ORDER FORM
City of Santa Paula 970 Ventura Street / P.O. Box 569, Santa Paula, CA 93061 / (805) 525-4478
TASK ORDER #
Issued under AGREEMENT FOR SERVICES, dated __________________ Project Name:
Project Number:
Contractor Name:
Vendor Number:
Contract Number:
Account Number: XXX-X-XXXX-XXX
Date Prepared:
Project Description:
Provide ______________________ consulting services to the City of Santa Paula.
Description of Services to be Performed by Consultant under this Task Order:
The City of Santa Paula authorizes the Consultant (_______) to ____________________________________________________________________________ ____________attached ___________proposal dated _______________(Exhibit A).
Time for Completion:
The Consultant shall complete the work __ months from executed Task Order.
Cost Estimate:
Task Order # __ hereby authorizes payment in the amount of $____________. This project will be completed on a time and materials basis in accordance with the Standard Agreement for Services dated _______________.
CONSULTANT/CONTRACTOR
_________________________________________ _________
Consultant Company Date
Recommended/Approved By:
405
65283.00007\41669535.2
Exhibit “B”-2 PROFESSIONAL SERVICES AGREEMENT–ON
CALL
_________________________ _________ ________________________ _________ Clete Saunier, Date Christy Ramirez, Date
Public Works Director Finance Director
________________________________________ ________
Dan Singer, City Manager Date
406
65283.00007\41669535.2
Exhibit “C”-1 PROFESSIONAL SERVICES AGREEMENT–ON CALL
EXHIBIT "C"
COMPENSATION
[Attached Behind]
407
RATE ESCALATION
PROJECT RELATED
REIMBURSABLE EXPENSES
Listed below is the current schedule of hourly rates for work to be carried out under the On-Call Services agreement. The listed hourly rates are defined by billing classification and staff labor rate and include all direct and indirect expenses and fees. (Audited total billing rates including direct labor, fringe, indirect costs, fee/profit and overhead expenses can be provided for review upon request.)
Principal............................................................................................. $190.00/hr • Mike Zielsdorf
• Eric Berg
Senior Associate............................................................................... $165.00/hr • Brooke McDonnell
Associate........................................................................................... $130.00/hr • Breanne Dunn
Landscape Designer ....................................................................... $110.00/hr • As-needed production support
Administrative..................................................................................... $75.00/hr PCLD will increase fees on an annual basis based on the ENR Building Cost Index averaged over the previous year. This increase shall not exceed 3% annually in hourly cost.
Listed below are expenses PCLD typically bills to a project if incurred during the course of a project that is initiated from the On-Call Services agreement. PCLD will provide estimates of reimbursable expenses as part of the proposed scope of work for a given project. Reimbursable project costs will not be accrued until authorized by the City of Santa Paula contract administrator.
• Reproduction of all documents, including postage and shipping charges shall be paid for at cost plus 15% for processing and handling.
• Special tests required due to site conditions.
• Sub-consultant services for work which the landscape architect is not licensed to provide.
SECTION 6
PCLD Santa Paula On-Call Proposal (2023) | 27
HOURLY RATE
SCHEDULE
408
Attachment 6
PROFESSIONAL SERVICES
AGREEMENT
ON-CALL SERVICES BETWEEN THE CITY OF SANTA PAULA
AND WATER SYSTEMS CONSULTING, INC.
409
65283.00001\33134795.1
-1- PROFESSIONAL SERVICES AGREEMENT–ON CALL
CITY OF SANTA PAULA
PROFESSIONAL SERVICES AGREEMENT
ON-CALL SERVICES
AND
WATER SYSTEMS CONSULTING, INC.
1. PARTIES AND DATE.
This Agreement is made and entered into this 18th day of October, 2023, by and between the City of Santa Paula, a municipal corporation organized under the laws of the State of California with its principal place of business at 970 Ventura Street, Santa Paula, CA 93060, County of Ventura, State of California ("City") and Water Systems Consulting, Inc., a California Corporation, with its principal place of business at 805 Aerovista Place, San Luis Obispo, CA 93401 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing right of way services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the On-Call Engineering and Professional Consulting Services project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional right of way consulting services necessary for the Project described in Exhibit "A" attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “B”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, the exhibits attached hereto and incorporated herein by reference. Consultant shall exercise the Standard of Care to comply with all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one additional one-year terms. The Parties may, by mutual, written consent, extend the term of this Agreement if 410
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HOURLY RATE SCHEDULE
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CITY OF SANTA PAULA | CATEGORY 9. GEOTECHNICAL AND CATEGORY 10. MATERIAL TESTING 23
HOURLY RATE SCHEDULE
Schedule of Fees and General Terms
Personnel Charges - Professional Staff
Product Name Units Rate ($)
Project Engineer - Laboratory HR $190.00
Administrative HR $70.00
Principal Engineer - Office HR $220.00
Principal Engineer - Field HR $220.00
Principal Engineer - Consultation HR $220.00
Principal Engineer - Job Conference HR $220.00
Principal Engineer - Expert Witness HR $500.00
Principal Engineer - Court Appearance HR $600.00
Project Engineer - Office HR $190.00
Project Engineer - Field HR $190.00
Project Engineer - Consultation HR $190.00
Project Engineer - Job Conference HR $190.00
Staff Engineer - Office HR $145.00
Staff Engineer - Field HR $145.00
Drafting HR $110.00
Project Manager - Office HR $165.00
Project Manager - Field HR $165.00
Project Manager - Job Conference HR $165.00
Principal Geologist - Office HR $200.00
Principal Geologist - Field HR $200.00
Principal Geologist - Consultation HR $200.00
Principal Geologist - Job Conference HR $200.00
Principal Geologist - Expert Witness HR $450.00
Principal Geologist - Court Appearance HR $550.00
Project Geologist - Office HR $180.00
Project Geologist - Field HR $180.00
Project Geologist - Consultation HR $180.00
Project Geologist - Job Conference HR $180.00
Qualified SWPPP Developer QSD HR $160.00
Staff Geologist - Office HR $145.00
Staff Geologist - Field HR $145.00
Qualified SWPPP Practitioner QSP HR $150.00
Personnel Charges - Field Staff
Product Name Units Rate ($)
Soils Engineering Technician HR $115.00
Soils Technician Compaction Testing HR $115.00
Soils Technician Rough Grading HR $115.00
Soils Technician Retesting HR $115.00
Public Works Inspector HR $125.00
Public Works Technician HR $115.00
Public Works Inspector - Asphalt Paving HR $115.00
Public Works Inspector - Asphalt Plant HR $115.00
Public Works Inspector - Concrete Paving HR $115.00
Public Works Inspector - Concrete Plant HR $115.00
Public Works Technician - Asphalt HR $115.00
Public Works Technician - Concrete HR $115.00
Laboratory Technician - Field Lab HR $120.00
Lead Roadway and Structures Inspector HR $140.00
Structures Inspector HR $140.00
Roadway Inspector HR $115.00
Civil Inspector HR $135.00
Building Inspector HR $140.00
Special Inspector (ICC) HR $115.00
Mechanical | Electrical Inspector HR $145.00
Schedule of Fees and General Terms
Special Inspector Reinforced Concrete HR $115.00
Special Inspector Prestressed Concrete HR $115.00
Special Inspector Concrete Batch Plant HR $115.00
ACI Concrete Technician HR $115.00
Pick-up and Delivery of Test Specimens HR $100.00
ID Reinforcing or Structural Steel HR $115.00
Special Inspector Fire Proofing HR $115.00
Special Inspector Post Installed Anchors HR $115.00
Special Inspector Roofing/Waterproofing HR $115.00
Special Inspector Masonry HR $115.00
Special Inspector Masonry (DSA) HR $115.00
Special Inspector Shotcrete HR $115.00
Special Inspector Post Tensioned Concrete HR $115.00
Special Inspector Fire Stopping HR $135.00
AWS Certified Welding Inspector- Field HR $115.00
AWS Certified Welding Inspector- Shop HR $115.00
Special Inspector Structural Steel HR $115.00
Special Inspector High Strength Bolting HR $115.00
Special Inspector Wood Construction HR $140.00
Non Destructive Testing ASNT Level II HR $135.00
Non Destructive Testing ASNT Level III HR $250.00
Coatings Technician HR $140.00
Special Inspector Fiber Wrap HR $115.00
Radiographic Testing Crew HR $500.00
Pull | Torque Testing Technician HR $115.00
Project Inspector (IOR) HR $145.00
Asphalt Coring HR $135.00
Concrete Coring HR $135.00
Horizontal Wall Coring HR $135.00
Assistant Wall Coring HR $115.00
Supervising Soil Technician HR $150.00
Supervising Public Works Inspector HR $150.00
Supervising Special Inspector HR $150.00
Quality Control Manager HR $155.00
Laboratory Tests - Steel
Product Name Units Rate ($)
ASTM E605 Spray Applied Fireproofing Den EA $135.00
ASTM A370 Rebar Tension up to #8 EA $70.00
ASTM A370 Rebar Tension #9 to #11 EA $85.00
ASTM A370 Rebar Tension #14 EA $125.00
ASTM A370 Rebar Tension #18 EA $180.00
ASTM A370 Bend Test Rebar up to #8 EA $60.00
ASTM A370 Bend Test Rebar #9 to #11 EA $70.00
ASTM A370 Bend Test Rebar #14 EA $125.00
ASTM A370 Bend Test Rebar # 18 EA $180.00
ASTM A370 Headed Bar Prod. Lot up to #8 LOT $275.00
ASTM A370 Headed Bar Prod. Lot #9 to #11 LOT $335.00
ASTM A370 Headed Bar Prod. Lot #14 LOT $515.00
ASTM A370 Headed Bar Prod. Lot #18 LOT $670.00
ASTM A416 Stress-Strain Analysis EA $250.00
ASTM A416 Tensile Test Only EA $175.00
ASTM A370 Tensile Up to 100K lbs (Each) EA $85.00
ASTM A370 Tensile Up to 200K lbs (Each) EA $100.00
ASTM A370 Tensile Up to 300K lbs (Each) EA $120.00
ASTM A370 Tensile Up to 400K lbs (Each) EA $180.00
ASTM A370 Tensile 400K - 500K lbs (Each) EA $365.00
Schedule of Fees and General Terms
ASTM A370 Tensile Stress-Strain Percent EA $205.00
AWS Weld: Macroetch EA $120.00
AWS Weld: Fracture EA $95.00
AWS Bend Test EA $85.00
ASTM A370 Rockwell Hardness (Each) EA $120.00
Steel Chemical Analysis EA $255.00
ASTM F606 Bolt Axial Tensile to 7/8” EA $70.00
ASTM F606 Bolt Wedge Tensile to 7/8” EA $100.00
ASTM F606 Bolt Wedge Tens 7/8” to 1 1/2" EA $120.00
ASTM F606 Bolt: Axial 7/8” - 1 1/2” EA $105.00
ASTM F606 Bolt: Proof Load up to 7/8" EA $110.00
ASTM F606 Bolt: Proof Load up to 1 1/2" EA $135.00
ASTM F606 Nut: Proof Load up to 7/8" EA $75.00
ASTM F606 Nut: Proof Load up to 1 1/2" EA $120.00
Laboratory Tests - Soil
Product Name Units Rate ($)
ASTM D4318 Plasticity Index of Soils EA $335.00
ASTM D1883 California Bearing Ratio EA $750.00
ASTM D2435 Consolidation EA $295.00
ASTM D2435 Consolidation with Time Rate EA $355.00
ASTM D3080 Direct Shear, Consol&Drained EA $285.00
ASTM D4829 Expansion Index of Soils EA $270.00
ASTM D2166 Unconfined Comp Strength EA $335.00
ASTM D5333 Hydro Collapse Potential EA $260.00
ASTM D2050 Tri-Axial Shear Strength EA $550.00
ASTM D2937 In-Place Density, Drive Cyl EA $75.00
ASTM D2216 Soil Moisture Content by Mass EA $55.00
ASTM D698 Maximum Density Std Effort EA $350.00
ASTM D1557 Max Density Optimum Moisture EA $350.00
ASTM D2974 Moisture, Ash, Organic Matter EA $120.00
ASTM D4972 pH of Soils EA $125.00
ASTM D2434 Const Head Permeability Test EA $470.00
ASTM D2844 R-Value & Expansive Pressures EA $480.00
ASTM D422 Sieve Analysis of Soil EA $260.00
ASTM D1140 Materials Finer than #200 EA $160.00
ASTM D422 Hydrometer Anaylsis EA $395.00
ASTM D854 Specific Gravity of Soils EA $295.00
ASTM D4546 Swell Potential EA $260.00
ASTM D4943 Shrinkage Factor by Resin EA $290.00
ASTM D559 Soil Cement Sample Preparation EA $160.00
ASTM D558 Soil-Cement Maximum Density EA $395.00
ASTM D1633 Compression Test Soil Cement EA $130.00
AASHTO T100 Specific Gravity of Soils EA $295.00
Laboratory Tests - Masonry
Product Name Units Rate ($)
ASTM C140 Block Compressive Strength SET $100.00
ASTM C140 Block Moisture & Absorption SET $110.00
ASTM C426 Block Linear Shrinkage SET $375.00
ASTM C140 Block Unit Wt & Dimensions SET $265.00
ASTM C90 Masonry Block Conformance SET $740.00
ASTM C67 Brick Compressive Strength SET $125.00
ASTM C67 Brick Moisture & Absorption SET $110.00
ASTM C67 Brick 5 Hour Boil EA $135.00
ASTM C67 Brick Modulus of Rupture EA $135.00
ASTM C780 Mortar Cylinder Compression EA $50.00
Schedule of Fees and General Terms
ASTM C1019 Grout Prism Compression EA $55.00
ASTM C1314 Masonry Core Comp Str 8" Max EA $120.00
ASTM C1314 Masonry Core Shear Str 8" Max EA $130.00
ASTM E519 Assemblage Comp Str 8" Block EA $155.00
ASTM E519 Assemblage Comp Str 12" Block EA $140.00
ASTM E519 Assemblage Comp Str 16" Block EA $175.00
ASTM C109 Compressive Strength 2" Cube EA $75.00
Laboratory Tests - Concrete
Product Name Units Rate ($)
ASTM C39 Concrete Cyl Cured or Tested EA $50.00
ASTM C42 Compressive Strength, Core EA $120.00
ASTM C39 Cyl Tested out of Sequence EA $80.00
ASTM C495 Lightweight Concrete Strength EA $75.00
ASTM C78 Flexural Strength, Beam EA $135.00
ASTM C1140 Shotcrete Panel Test SET $450.00
ASTM C138 Unit Weight of Concrete EA $90.00
ASTM C649 Concrete Modulus of Elasticity EA $275.00
ASTM C496 Splitting Tensile Test EA $125.00
ASTM C157 Concrete Shrinkage (Set of 3) SET $650.00
ASTM C495 Density - Lightweight Concrete EA $240.00
T 336 Coefficient of Thermal Expansion EA $750.00
Laboratory Tests - Caltrans
Product Name Units Rate ($)
CT202 Sieve Analysis, Combined Agg EA $275.00
CT202 Sieve Analysis, Fine Agg EA $210.00
CT202 Sieve Analysis, Coarse Agg EA $195.00
CT235 Flat and Elongated Particles EA $400.00
CT205 Percentage Crushed Particles EA $275.00
CT206 Specific Gravity, Coarse Aggregate EA $195.00
CT207 Specific Gravity, Fine Aggregate EA $295.00
CT229 Durability Index EA $455.00
CT208 Apparent Specific Gravity of Fines EA $295.00
CT234 Angularity & Voids, Fine Agg EA $295.00
CT211 Abrasion, Los Angeles Rattler EA $375.00
CT227 Cleanness Value EA $420.00
CT213 Organic Impurities in Sand EA $135.00
CT214 Soundness by Sodium Sulfate EA $650.00
CT226 Moisture Content by Oven Drying EA $65.00
CT217 Sand Equivalent EA $190.00
CT308(A) Core Density Paraffin Coated EA $85.00
CT308(C) Core Density SSD EA $75.00
CT303 Approximate Bitumen Ratio EA $335.00
CT304/308(A) LTMD Kneading Compactor EA $480.00
CT305 Swell of Bituminous Mixtures EA $550.00
CT366 Stabilometer Value EA $395.00
CT308(A)/366 Stability and Density EA $490.00
CT308(C)/366 Stability and Density EA $470.00
CT309 Maximum Theoretical Density EA $295.00
CT370 Moisture Content by Microwave EA $110.00
CT379 Asphalt Content Nuclear Gauge EA $275.00
CT382 Ignition Oven Correction Factor EA $550.00
CT382 Asphalt Content by Ignition EA $275.00
CT371 Tensile Strength Ratio EA $1,470.00
CT302 Film Stripping EA $335.00
CT521 Concrete Cyl Compressive Strength EA $50.00
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CITY OF SANTA PAULA | CATEGORY 9. GEOTECHNICAL AND CATEGORY 10. MATERIAL TESTING 24
HOURLY RATE SCHEDULE
Schedule of Fees and General Terms
CT523 Concrete Flexural Strength, Beam EA $135.00
CT531 Length of Drilled Concrete Cores EA $75.00
CT550 Surface Abrasion of Concrete EA $535.00
CT534 Water Retention, Liq Curing Cmpnd EA $570.00
CT521 Compressive Strength LCB EA $50.00
CT524 RSC Flexural Strength, Beam EA $135.00
CT515 Relative Mortar Strength, PCC Sand EA $900.00
CT670 Tensile Strength up to #8 EA $95.00
CT670 Tensile Strength #8 - #11 EA $120.00
CT670 Tensile Strength #14 EA $180.00
CT670 Tensile Strength #18 EA $255.00
CT 52-1-08C Slip Test EA $275.00
CT670 Operator Qualification up to #8 LOT $550.00
CT670 Operator Qualification #9 - #11 LOT $655.00
CT670 Operator Qualification #14 LOT $950.00
CT670 Operator Qualification #18 LOT $1,235.00
CT670 Operator Qualification #9 - #11 EA $675.00
CT670 Operator Qualification up to #8 EA $550.00
CT670 Operator Qualification #14 EA $950.00
CT670 Operator Qualification #18 EA $1,235.00
CT670 Production Lot up to #8 (Service) LOT $355.00
CT670 Production Lot #9 to #11 (Service) LOT $475.00
CT670 Production Lot #14 (Service) LOT $635.00
CT670 Production Lot #18 (Service) LOT $825.00
CT670 Production Lot up to #8 (Ultimate) LOT $455.00
CT670 Production Lot #9 to #11(Ultimate) LOT $490.00
CT670 Production Lot #14 (Ultimate) LOT $790.00
CT670 Production Lot #18 (Ultimate) LOT $1,350.00
CT204 Plasticity Index, Atterberg EA $355.00
CT209 Specific Gravity of Soil EA $295.00
CT216 CA Impact Max Density EA $325.00
CT216 CA Impact, Rock Correction EA $95.00
CT301 Resistance R-Value Stabilometer EA $450.00
CT417 Soluble Sulfates EA $155.00
CT422 Chloride Content EA $135.00
CT643 Resistivity and pH EA $155.00
Laboratory Tests - Asphalt
Product Name Units Rate ($)
ASTM D2726 Core Density (SSD) EA $75.00
ASTM D1188 Core Density Parafilm Coated EA $85.00
ASTM D6926 Lab Max Density Marshall EA $395.00
ASTM D6927 Marshal Stability and Flow EA $480.00
ASTM D1561 LTMD Kneading Compactor EA $395.00
ASTM D1560 Hveem Stability and Density EA $490.00
ASTM D1560 Hveem Stability EA $375.00
ASTM D2041 Maximum Theoretical Density EA $295.00
ASTM D6307 Ignition Oven Calibration EA $550.00
ASTM D6307 Asphalt Content by Ignition EA $285.00
ASTM D2172 Asphalt Content by Solvents EA $475.00
ASTM D5444 Gradation of Extracted Agg EA $335.00
ASTM D4125 Asphalt Content Nuclear Gauge EA $335.00
ASTM D244 Emulsion Residue Evaporation EA $280.00
ASTM D244 Emulsion Sieve Analysis EA $185.00
ASTM D3910 Wet Track Abrasion EA $285.00
AASHTO T283 Tensile Strength Ratio EA $1,200.00
AASHTO T324 Hamburg Wheel Tracking Test EA $1,100.00
Schedule of Fees and General Terms
AASHTO T275 Core Denisty Paraffin Coated EA $85.00
AASHTO T312/T275 LTMD Gyratory Compactor EA $480.00
AASHTO T308 Asphalt Content by Ignition EA $285.00
AASHTO T209 Theoretical Maximum Density EA $295.00
AASHTO T308A AC Correction Factor EA $550.00
AASHTO T324 Hamburg Wheel Tracking - RHMA EA $1,100.00
AASHTO T283 Tensile Strength Ratio - RHMA EA $1,200.00
AASHTO T312/T275 LTMD Gyratory Comp.- RHMA EA $480.00
Laboratory Tests - Aggregates
Product Name Units Rate ($)
ASTM C131 Abrasion, Los Angeles Rattler EA $375.00
ASTM C40 Organic Impurities in Fine Agg EA $135.00
ASTM C127 Specific Gravity, Coarse Agg EA $255.00
ASTM C128 Specific Gravity, Fine Agg EA $290.00
ASTM C1252 Angularity & Voids, Fine Agg EA $280.00
ASTM C566 Moisture Content by Drying EA $35.00
ASTM C117 Materials Finer than No. 200 EA $160.00
ASTM D2419 Sand Equivalent EA $180.00
ASTM C289 Alkali-Silica Reactivity EA $950.00
ASTM D4791 Flat & Elongated Particles EA $395.00
ASTM D5821 Percent Fractured Particles EA $275.00
ASTM C123 Percent Lightweight Particles EA $295.00
ASTM C88 Soundness by Sodium Sulfate EA $635.00
ASTM C136 Sieve Analysis, Combined Agg EA $290.00
ASTM C136 Sieve Analysis, Fine Agg EA $265.00
ASTM C136 Sieve Analysis, Coarse Agg EA $255.00
ASTM C142 Clay Lumps & Friable Particles EA $260.00
ASTM C535, Abrasion Large Aggregate EA $465.00
AASHTO T304 Angularity & Voids in Fines EA $255.00
AASHTO T84 Specific Gravity, Fine Agg EA $280.00
AASHTO T85 Specific Gravity, Coarse Agg EA $255.00
AASHTO T96 Abrasion, Los Angeles Rattler EA $375.00
AASHTO T27 Sieve Analysis, Combined Agg EA $290.00
AASHTO T27 Sieve Analysis, Fine Agg EA $285.00
AASHTO T27 Sieve Analysis, Coarse Agg EA $255.00
AASHTO T176 Sand Equivalent EA $180.00
AASHTO T335 Percent Fractured Particles EA $255.00
Equipment Charges
Product Name Units Rate ($)
Portable Drilling Equipment HR $750.00
Mobile Laboratory Trailer Mobilization EA $1,500.00
Mobile Laboratory Trailer & Testing Equipment DAY $700.00 Diamond Bit Core Rig and Generator DAY $750.00
Stationary Laboratory Trailer & Testing Equipment MO $1,500.00 Mileage MILE Quote
Nuclear Density Test Gauge DAY $35.00
Hand Held Turbidity Meter DAY $50.00
Ultrasonic Test Unit and Consumables DAY $100.00
Magnetic Particle Test Unit DAY $100.00
Skidmore DAY $80.00
Schmidt Hammer DAY $100.00
Torque Wrench DAY $80.00
Proof Load Testing Equipment DAY $150.00
Drilling Equip Mobilization / De-Mob EA $800.00
ASTM C1028 Coefficient of Friction DAY $800.00
Schedule of Fees and General Terms
Mini Environmental Quality Meter DAY $400.00
Inertial Profiler DAY $2,000.00
Materials / Supplies LS Quote
Holiday Tester DAY $250.00
VOC Meter DAY $200.00
Misc Permits LS Quote
Misc Fees HR Quote
Misc Subconsultant LS Quote
Set of Aerial Photographs EA Quote
Blueprinting EA Quote
Dutch Cone Penetrometer with Operator HR $875.00
Hollow Stem Auger Drill Rig w/ Operator HR $775.00
Portable Drilling Equipment w/ Operator HR $750.00
Bucket Auger Drill Rig with Operator HR $875.00
Air Rotary Drill Rig with Operator HR $900.00
Rotary Wash Drill Rig with Operator HR $950.00
Per Diem DAY $150.00
Schedule of Fees and General Terms
TERMS AND CONDITIONS
GENERAL CHARGES
RMA Group requires twenty-four (24) hour prior notification for scheduling inspectors and/or technicians.
Inspection charges start at the scheduled show up time at the job site. All inspection hours will be billed in the following increments:
There will be a minimum two (2) hour charge for any RMA Group employee presence on site.
Any time less than four (4) hours of work will be billed as four (4) hours.
Four (4) to eight (8) hours will be billed as eight (8) hours.
When personnel are required to work in excess of 5 hours without an uninterrupted meal period of 30 minutes, due to project constraints, ½ hour will be charged at double time rates in addition to any applicable hours worked.
Rates are valid through June 30, 2024. Rates for personnel will increase by 5% per year on July 1st of each subsequent year.
Outside services will be billed at cost plus 15% unless billed directly to and paid for by Client.
Requests made by client for management attendance at meetings at the project site will be charged at standard rate.
Administrative/clerical support will be charged at 3% of the monthly direct charges.
OVERTIME CHARGES
Work performed in excess of 8 hours per day and / or up to eight (8) hours on Saturdays will be billed at 1.50 times the unit rate.
Work performed on Sunday, recognized holidays, or in excess of eight (8) hours on Saturdays will be billed at 2.00 times the unit rate.
A 20% surcharge will be applied for laboratory tests performed on a Saturday or Sunday.
PER DIEM AND TRAVEL CHARGES
A $150.00 charge per day will be applied when our personnel are required to stay overnight at remote locations.
Time will be billed at the unit rate while traveling to a remote location or if a location requires an overnight stay Mileage for travel outside a 50 mile radius from either the project site or the nearest RMA facility whichever is closest, will be charged at a rate of $0.60 per mile.
NIGHT WORK
A $5.00 per hour surcharge will be added to all personnel rates for work performed during night shifts. 466
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PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
UNION MATERIALS TESTING, INC.
1. PARTIES AND DATE.
This Agreement is made and entered into this 18th day of October, 2023, by and between the City of Santa Paula, a municipal corporation organized under the laws of the State of California with its principal place of business at 970 Ventura Street, Santa Paula, CA 93060, County of Ventura, State of California ("City") and Union Materials Testing, Inc., a California Corporation, with its principal place of business at 2247 Statham Blvd., Oxnard, CA 93033 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing geotechnical engineering and materials testing services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the On-Call Engineering and Professional Consulting Services project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional geotechnical engineering and materials testing consulting services necessary for the Project described in Exhibit "A" attached hereto and incorporated herein by reference (“Services”). The Services shall be more particularly described in the individual Task Order issued by the City or its designee. No Services shall be performed unless authorized by a fully executed Task Order in the form attached hereto as Exhibit “B”. All Services shall be subject to, and performed in accordance with, this Agreement, each Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 496
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2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one additional oneyear terms.***] The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total compensation for all Task Orders issued hereunder shall not exceed Two Hundred Fifty Thousand Dollars and no cents ($250,000.00) per fiscal year without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. 497
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Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth in each individual Task Order issued by the City. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the established schedules and deadlines.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows:Evan Folk, President].
3.3.5 City's Representative. The City hereby designates Clete Sauiner, Public Works Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Evan Folk, President, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling 498
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necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification. 499
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3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and 500
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regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement. 501
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
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3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
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(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its 504
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officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 505
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3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders. 506
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3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Union Material Testing, Inc.
2247 Statham Blvd.
Oxnard, CA 93033
ATTN: Evan Folk, President
City: City of Santa Paula
PO Box 569
Santa Paula, CA 93061
ATTN: Clete Sauiner, Public Works Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the 507
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Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, 508
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in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Ventura County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
Consultant shall not subcontract any portion of the Services required by this Agreement, except 509
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as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter 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 bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
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3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
3.7.22 Order of Precedence. The following order and succession of the referenced documents shall govern in the event of conflict between documents:
3.7.22.1 Amendment(s)
3.7.22.2 This Agreement
3.7.22.3 Task Orders
3.8 Federal Provisions.
FEMA financial assistance will be used to fund all or a portion of this Agreement. The Consultant shall comply with all federal requirements including, but not limited to, the following:
2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference, and Federal Contract Provisions attached hereto as Exhibit “A-1” and incorporated herein by reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Agreement, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions. With respect to any conflict between such federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT FOR ON-CALL
SERVICES BETWEEN THE CITY OF SANTA PAULA AND
UNION MATERIALS TESTING, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Contract to be executed on the day and year first above written.
CITY OF SANTA PAULA UNION MATERIALS TESTING, INC.
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Dan Singer,
City Manager
Approved as to Form:
_____________________________________
Monica Castillo,
Interim City Attorney
Attested By:
Julie Latshaw,
City Clerk
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Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT–ON
CALL
EXHIBIT "A"
SCOPE OF SERVICES
[Due to page volume, this exhibit is intentionally omitted. A copy of the entire agreement is available at the City Clerk’s office]
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Exhibit “A-I-1” PROFESSIONAL SERVICES AGREEMENT–ON
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EXHIBIT "A-I"
FEDERAL CONTRACT PROVISIONS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit.
1. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336) Consultant shall comply with 2 C.F.R. § 200.336 and provide the Federal Agency, Inspectors General, the Comptroller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinent to this contract for the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Consultant's personnel for the purpose of interview and discussion related to the books and records. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. The Consultant agrees to provide the Federal Agency or its authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. In compliance with the Disaster Recovery Act of 2018, the City and Consultant acknowledge and agree that no language in this contract is intended to prohibit audits or internal review by the FEMA Administrator or the Comptroller General of the United States.
2. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.326)
2.1 Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
2.1.1 The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
2.1.2 The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
2.1.3 The Consultant will not discharge or in any other manner discriminate 514
65283.00001\33134795.1
Exhibit “A-I-2” PROFESSIONAL SERVICES AGREEMENT–ON
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against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information.
2.1.4 The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
2.1.5 The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
2.1.6 The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
2.1.7 In the event of the Consultant's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
2.1.8 The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above 515
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Exhibit “A-I-3” PROFESSIONAL SERVICES AGREEMENT–ON
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equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
2.2 Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this contract is in excess of $150,000, Consultant shall comply with the following:
2.2.1 Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.2.2 Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
2.3 Appendix II to Part 200 (H) – Debarment and Suspension. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these 516
65283.00001\33134795.1
Exhibit “A-I-4” PROFESSIONAL SERVICES AGREEMENT–ON
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regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above.
Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this contract.
2.4 Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act. Consultants that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
2.5 Procurement of Recovered Materials. In the performance of this contract, Consultant shall make maximum use of products containing recovered materials that are EPAdesignated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
3. MISCELLANEOUS PROVISIONS
3.1 The Consultant shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval.
3.2 This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of this contract. The Consultant will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.
3.3 Consultant acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this contract.
3.4 The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the City, Consultant, any subcontractors or any other party pertaining to any matter resulting from the contract.
3.5 General and administrative expenses shall be negotiated and must conform to the Cost Principles in 2 C.F.R. Part 200. Profit shall be negotiated as a separate element of the cost.
To establish a fair and reasonable profit, consideration must be given to the complexity of the 517
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Exhibit “A-I-5” PROFESSIONAL SERVICES AGREEMENT–ON
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work to be performed, the risk borne by the Consultant, the Consultant's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. Any agreement, amendment or change order for work performed on a time and materials basis shall include a ceiling price that Consultant exceeds at its own risk.
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65283.00001\33134795.1
Exhibit “B”-1 PROFESSIONAL SERVICES AGREEMENT–ON
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EXHIBIT "B"
SAMPLE TASK ORDER FORM
City of Santa Paula 970 Ventura Street / P.O. Box 569, Santa Paula, CA 93061 / (805) 525-4478
TASK ORDER #
Issued under AGREEMENT FOR SERVICES, dated __________________ Project Name:
Project Number:
Contractor Name:
Vendor Number:
Contract Number:
Account Number: XXX-X-XXXX-XXX
Date Prepared:
Project Description:
Provide ______________________ consulting services to the City of Santa Paula.
Description of Services to be Performed by Consultant under this Task Order:
The City of Santa Paula authorizes the Consultant (_______) to ____________________________________________________________________________ ____________attached ___________proposal dated _______________(Exhibit A).
Time for Completion:
The Consultant shall complete the work __ months from executed Task Order.
Cost Estimate:
Task Order # __ hereby authorizes payment in the amount of $____________. This project will be completed on a time and materials basis in accordance with the Standard Agreement for Services dated _______________.
CONSULTANT/CONTRACTOR
_________________________________________ _________
Consultant Company Date
Recommended/Approved By:
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65283.00001\33134795.1
Exhibit “B”-2 PROFESSIONAL SERVICES AGREEMENT–ON
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__________________________ _________ __________________________ _________ Clete Saunier, Date Christy Ramirez, Date
Public Works Director Finance Director
________________________________________ ________
Dan Singer, Date
520
65283.00001\33134795.1
Exhibit “C”-1 PROFESSIONAL SERVICES AGREEMENT–ON CALL
EXHIBIT "C"
COMPENSATION
[Attached Behind]
521
522
523
To: Honorable Mayor and Members of the City Council
From: Clete Saunier, Public Works Director
Subject: ON-CALL SERVICE AGREEMENTS FOR CITYWIDE STREET
MAINTENANCE SERVICES
Date: October 18, 2023
Agenda Item: 10.H
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Authorize the City Manager to execute three (3), three-year on-call services agreements with Toro Enterprises, Inc., J & H Engineering General Contractors, Inc., and BSN Construction, Inc., for Citywide Street Maintenance services for FY 2023-2026.
2. Authorize the City Manager or his designee to issue street repair and maintenance services work orders on a time and material basis in an aggregate amount not to exceed the adopted fiscal year budget or $250,000 per fiscal year, whichever is less.
BACKGROUND:
On May 2, 2023, staff presented to the City Council a 5-Year Pavement Management Plan (PMP) within a 20-year forecast. The PMP is used as a roadmap for the development of the City's Capital Improvement Program (CIP) that includes ongoing pavement repair, resurfacing, and rehabilitation of the City’s streets.
The plan calls for extensive citywide street maintenance every 4 to 5 years to extend the service life of certain existing roads. Streets selected for treatment between 2024 and 2026 are dependent on actual progress in the 2023-2024 program. These updated plans will address the upcoming fiscal years, with a baseline reflecting the previously developed FiveYear PMP. This list will be subject to yearly review and revisions based on observations of the actual condition of the street, analysis of its rate of deterioration, selection of other streets in the area, market conditions, cash flow strategies, and other factors.
In addition to maintaining street pavement in the public right-of-way, maintenance of City rightof-way and associated facilities is required on a routine basis. This would include City owned parking lots, repair of sidewalks, and to repair/replace curb ramps. The plan currently projects the maintenance and repair of five (5) City owned parking lots and associated disabled accessible parking and accessible paths of travel. These proposed locations include four (4) parks and the City Hall Campus parking lots.
The PMP is essential for ensuring City roads that are in good condition remain in that 524
condition for a much longer time. If done regularly, the PMP will reduce the amount of costly pavement rehabilitation and reconstruction work in the future, as well as mitigating hazards associated with damaged or uplifted sidewalks, missing curb ramps and other necessary work within the City’s right of way.
The City needs specialized contractors to perform pavement improvement work in order to accomplish the goals of the PMP in a timely manner. By pre-qualifying contractors to be utilized on an on-call basis, the delays associated with a traditional Request for Bids (RFB) process is eliminated on the front end of each project. Rather, staff has access to a prequalified group of contractors available to efficiently respond to the needs of the City.
ANALYSIS:
On June 21, 2023, City Council authorized Staff to publish a Request for Qualifications (RFQ) for Citywide Street Maintenance Services. On June 29, 2023, staff advertised the RFQ which was received and opened on July 27, 2023. The following Statement of Qualifications (SOQs) were received:
No. Contractor
1. BSN Construction, Inc.
2. J & H Engineering General Contractors, Inc.
3. Toro Enterprises, Inc.
The contractors were evaluated based on their qualifications, experience, and unit prices. Staff determined that all three contractors are qualified to provide street maintenance services.
Their unit prices are also very competitive compared to currently available bid data. By having all three contractors on maintenance agreements, the City will be able to carry out all aspects of the Street Maintenance Program. Staff recommends the City Council approve the maintenance agreements as presented.
Lastly, staff is committed to responsible financial stewardship and will regularly report to Council on the projects covered by these contracts. In addition, staff will ensure that no work order is issued for a Capital Improvement Project (CIP) until the CIP is approved by City Council.
STRATEGIC PLAN:
The Project supports the currently adopted Strategic Plan in achieving the following goals:
Infrastructure, Transportation & Mobility
Goal: Maintain and develop the City’s infrastructure to be safe, sustainable, innovative and cost-efficient.
FISCAL IMPACTS:
Individual work orders with the City Manager’s, or his designee’s approval will be separately issued, reflecting negotiated scopes of work, cost estimates and schedules for projects and services that have been adopted for the respective fiscal year. The amount for each work order shall not exceed the adopted budget for each project or professional service. The 525
cumulative total for all work orders shall not exceed $250,000 per fiscal year for each contractor. A sample Work Order is included in Exhibit B of each Attachment and associated services agreement.
OPTIONS:
The Council has the following available alternative options to staff’s recommendations:
1. Do not authorize Staff to publish an RFQ for Citywide Street Maintenance Services.
Doing so could potentially delay critical street maintenance work that is essential for executing the current PMP, as well as limiting Staff ability to effectively respond to regular repair requests for street features within City right of way.
ATTACHMENTS:
Attachement 1 -BSN Construction On Call Construction Services Agreement.pdf Attachment 2 - J & H Engineering Maintenance Agreement R1.pdf Attachment 3 - Toro Enterprises Inc Oncall Maintenance Agreement.pdf 526
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