The RFQ for On Call Engineering Consulting Services was released on February 27, 2023. Fifteen SOQs were submitted by the due date of April 21, 2023, for the Civil Engineering Design category. Staff reviewed the SOQs and ranked each firm by scoring them based on the following criteria as listed in the RFQ:
• Firm’s relevant experience and familiarity with issues applicable to the City’s needs (50%) • Qualifications of the firm and assigned individuals (25%) • Fee Structure and cost effectiveness of the consultants (15%) • Reference Checks (10%)
Six firms were deemed to possess all requested areas of expertise listed above, have recent experience handling on-call services for municipalities, are available to commence services immediately, and have resources and staffing to complete assignments on a timely basis: Bellecci & Associates, Inc., BKF Engineers, Cal Engineering & Geology, Inc., Coastland Civil Engineering, Mark Thomas & Company, Inc., and Nichols Consulting Engineers.
With increasing costs and urgent needs, staff recommends authorizing the City Manager to execute agreements with these six firms to provide on-call civil engineering design services in the amount not to exceed $500,000 for each contract.
Each of the firms listed above has been notified that it is being recommended for a contract in the amount not to exceed $500,000. The contracts will have an expiration date of June 30, 2026, and two one-year options to extend. The specific scope of services, schedule, and cost of work will be defined through statements of work for each assignment executed between the City and the consulting firm prior to beginning work on an assignment.
This action will authorize the City Manager to execute agreements that will establish a pool of professional consultants under contract with the City, and will allow staff to best fit the expertise of a particular firm to the needs of an assignment.
FISCAL IMPACT
This proposed action will not have any direct impact on the General Fund. Funds to pay for these as-needed consultant services will come from Council approved budgets.
ENVIRONMENTAL REVIEW
This action is exempt from the California Environmental Quality Act (CEQA) because it is not a project which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to CEQA Guideline section 15378.
ATTACHMENTS
1. Reso - Award On Call Civil Engineering Design_CAO Stamp
2. Bellecci - On-Call Design Professionals Agreement - Civil Eng Design_CAO Stamp Date: September 26, 2023
Subject: ADOPT A RESOLUTION APPROVING SEPARATE DESIGN PROFESSIONAL SERVICES AGREEMENTS WITH SIX CONSULTING FIRMS: BELLECCI & ASSOCIATES, INC., BKF ENGINEERS, CAL ENGINEERING & GEOLOGY, INC., COASTLAND CIVIL ENGINEERING, MARK THOMAS & COMPANY, INC., AND NICHOLS CONSULTING
ENGINEERS TO PROVIDE ON-CALL CIVIL ENGINEERING DESIGN SERVICES
AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH
3. BKF - On-Call Design Professionals Agreement - Civil Eng Design_CAO Stamp
4. Cal Eng - On-Call Design Professionals Agreement - Civil Eng Design_CAO Stamp
5. Coastland - On-Call Design Professionals Agreement - Civil Eng Design_CAO Stamp
6. Mark Thomas - On-Call Design Professionals Agreement - Civil Eng Design_CAO Stamp
7. Nichols NCE - On-Call Design Professionals Agreement - Civil Eng Design_CAO Stamp
CONTACT
Melissa Tigbao, P.E., Public Work Director, 707-648-4433 [email protected]
RESOLUTION NO. 23- _____ N.C.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VALLEJO
APPROVING SEPARATE DESIGN PROFESSIONAL SERVICES AGREEMENTS WITH SIX CONSULTING FIRMS: BELLECCI & ASSOCIATES, INC., BKF ENGINEERS, CAL ENGINEERING & GEOLOGY, INC., COASTLAND CIVIL ENGINEERING, MARK THOMAS & COMPANY, INC., AND NICHOLS CONSULTING ENGINEERS TO PROVIDE ON-CALL
ENGINEERING DESIGN SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH
WHEREAS, the ability to bring in consultants on an on call, as needed basis allows the Public Works Department to provide better customer service to the public and better manage workload to deliver projects in a timely manner; and
WHEREAS, the City anticipates using contract services of consultant firms to perform work on various engineering related projects and efforts in the City of Vallejo; and WHEREAS, on February 27, 2023, the City of Vallejo Public Works Department published the Request for Qualification for On-Call Engineering Consulting Services requesting qualifications that could cover eleven categories in order to create a readily-available, pre-screened group of qualified consultants to be deployed as-needed to a wide range of technical specialties necessary to successfully complete projects in a timely and high quality manner; and WHEREAS, fifteen statements of qualification (SOQ) were submitted by the due date of April 21, 2023 for the Civil Engineering Design category; and WHEREAS, each SOQ was given a score based on the demonstrated understanding of the services requested, the firm’s relevant experience and familiarity with issues applicable to the project, the qualifications of the firm and assigned individuals, the fee structure, and reference checks; and
WHEREAS, the six firms Bellecci & Associates, Inc., BKF Engineers, Cal Engineering & Geology, Inc., Coastland Civil Engineering, Mark Thomas & Company, Inc., and Nichols Consulting Engineers were deemed to possess all the requested areas of expertise, have recent experience handling on-call services for municipalities, are available to commence services immediately, and have resources and staffing to complete assignments on a timely basis; and
WHEREAS, each agreement awarded is not to exceed $500,000, with each agreement having an expiration date of June 30, 2026, along with an option to extend for two one- year increments.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Vallejo hereby approves Design Professional Services Agreements by and between the City of Vallejo and the following six consulting firms: firms: Bellecci & Associates, Inc., BKF Engineers, Cal Engineering & Geology, Inc., Coastland Civil Engineering, Mark Thomas & Company, Inc., and Nichols
Consulting Engineers to provide on-call Engineering Design Services in an amount not to exceed $500,000 for each agreement.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute each of the six above-referenced Agreements, with any modification recommended by the City Attorney and the City Clerk to attest the signing of those Agreements.
Adopted by the City Council of the City of Vallejo at a regular meeting held on September 26, 2023, with the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________________
ROBERT MCCONNELL, MAYOR
ATTEST:
______________________________________
DAWN G. ABRAHAMSON, CITY CLERK
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Bellecci & Associates, Inc., a California corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 2 of 11 and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 3 of 11 this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licences, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 4 of 11 agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 5 of 11 Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 6 of 11 payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 7 of 11 The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 8 of 11 555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Daniel Leary
Principal in Charge
Bellecci & Associates, Inc.
7077 Koll Center Pkwy., Suite 210
Pleasanton, CA 94566
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 9 of 11
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 10 of 11 binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Bellecci & Associates, Inc.
a California Corporation
By:___________________________
Daniel Leary
Principal in Charge
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Daniel Leary
Principal in Charge
Bellecci & Associates, Inc.
7077 Koll Center Pkwy., Suite 210
Pleasanton, CA 94566
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on-call civil engineering design services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 2 of 4 material breach of Design Professional’s obligations under this Agreement and shall be grounds for termination.
Key personnel are as follows: Daniel Leary
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Bellecci & Associates, Inc. CITY OF VALLEJO,
a California corporation a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and Zero Cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost-of-living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Civil Eng Design – BellecciPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and BKF Engineers, a California corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 2 of 11 and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 3 of 11 this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 4 of 11 agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 5 of 11 Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 6 of 11 payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 7 of 11 The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 8 of 11 555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Dan Schaefer
Principal in Charge & Project Manager
BKF Engineers
1646 N. California Blvd., Suite 400
Walnut Creek, CA 94596
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 9 of 11
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 10 of 11 binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
BKF Engineers
a California corporation
By:___________________________
Dan Schaefer
Principal in Charge
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Dan Schaefer
Principal in charge / Project Manager
BKF Engineers
1646 N. California Blvd., Suite 400
Walnut Creek, CA 94596
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on-call civil engineering design services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 2 of 4 material breach of Design Professional’s obligations under this Agreement and shall be grounds for termination.
Key personnel are as follows: Dan Schaefer
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
BKF Engineers CITY OF VALLEJO,
a California corporation a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and Zero Cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost-of-living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Civil Eng Design –BKFPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Civil Eng Design – BKFPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Civil Eng Design – BKFPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Civil Eng Design – BKFPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Cal Engineering & Geology, Inc. a Delaware corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 2 of 11 and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 3 of 11 this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 4 of 11 agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 5 of 11 Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 6 of 11 payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 7 of 11 The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 8 of 11 555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Scott Alman
Sr. Principal Engineer
Cal Engineering & Geology, Inc.
785 Ygnacio Vallejo Road
Walnut Creek, CA 94596
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 9 of 11
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 10 of 11 binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Cal Engineering & Geology, Inc.
a Delaware corporation
By:___________________________
Scott Alman
Sr. Principal Engineer
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Scott Alman
Sr. Principal Engineer
Cal Engineering & Geology, Inc.
785 Ygnacio Vallejo Road
Walnut Creek, CA 94596
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on-call civil engineering design services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 2 of 4 material breach of Design Professional’s obligations under this Agreement and shall be grounds for termination.
Key personnel are as follows: Scott Alman
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Cal Engineering & Geology, Inc. CITY OF VALLEJO,
a California corporation a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and Zero Cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost-of-living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Civil Eng Design –Cal Eng & GeoPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Civil Eng Design – Cal Eng & GeoPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Civil Eng Design – Cal Eng & GeoPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Civil Eng Design – Cal Eng & GeoPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Coastland Civil Engineering, LLP hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 2 of 11 and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 3 of 11 this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 4 of 11 agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 5 of 11 Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 6 of 11 payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 7 of 11 The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 8 of 11 555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: John Wanger
CEO
Coastland Civil Engineering, LLP
1400 Neotomas Avenue
Santa Rosa, CA 95405
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 9 of 11
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 10 of 11 binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Coastland Civil Engineering, LLP
By:___________________________
John Wanger
CEO
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
George Hicks
Project Manager
Coastland Civil Engineering
420 Executive Court North, Suite G
Fairfield, CA 94534
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on-call civil engineering design services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 2 of 4 material breach of Design Professional’s obligations under this Agreement and shall be grounds for termination.
Key personnel are as follows: John Wanger , George Hicks Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Coastland Civil Engineering, LLP CITY OF VALLEJO,
a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost-of-living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Civil Eng Design –CoastlandPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Civil Eng Design – CoastlandPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Civil Eng Design – CoastlandPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Civil Eng Design – CoastlandPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Mark Thomas & Company, Inc., a California corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 2 of 11 and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 3 of 11 this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 4 of 11 agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 5 of 11 Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 6 of 11 payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 7 of 11 The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 8 of 11 555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Shawn O’Keefe
Principal / Vice President
Mark Thomas & Company, Inc.
2121 N California Boulevard, Suite 260
Walnut Creek, CA 94956
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 9 of 11
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 10 of 11 binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Mark Thomas & Company, Inc.
a California corporation
By:___________________________
Shawn O’Keefe
Principal / Vice President
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Shawn O’Keefe
Principal / Vice President
Mark Thomas & Company, Inc.
2121 N California Boulevard, Suite 260
Walnut Creek, CA 94956
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on-call civil engineering design services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 2 of 4 material breach of Design Professional’s obligations under this Agreement and shall be grounds for termination.
Key personnel are as follows: Shawn O’Keefe , Jason Hickey Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Mark Thomas & Company, Inc. CITY OF VALLEJO,
a California corporation a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost-of-living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Civil Eng Design – Mark ThomasPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Nichols Consulting Engineers, CHTD, a Nevada corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 2 of 11 and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 3 of 11 this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 4 of 11 agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 5 of 11 Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 6 of 11 payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 7 of 11 The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 8 of 11 555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Margot Yapp,
President / Chief Executive Officer
Nichols Consulting Engineers
1885 S. Arlington Ave , Suite 111
Reno, NV 89509
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 9 of 11
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 10 of 11 binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Nichols Consulting Engineers.
a Nevada Corporation
By:___________________________
Margot Yapp
President / CEO
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Andre Jadkowski
Principal/ Project Manager
Nichols Consulting Engineers
501 Canal Boulevard, Suite I
Richmond, CA 94804
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on-call civil engineering design services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 2 of 4 material breach of Design Professional’s obligations under this Agreement and shall be grounds for termination.
Key personnel are as follows: Margot Yapp, Andre Jadkowski Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Nichols Consulting Engineers CITY OF VALLEJO,
a Nevada corporation a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost-of-living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Civil Eng Design – NCEPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
CONSENT CALENDAR 8.G.
DATE: September 26, 2023
TO: Mayor and Members of the City Council
FROM: Melissa Tigbao, P.E., Public Works Director
Dan Sequeira, P.E., Assistant Public Works Director / City Engineer SUBJECT: ADOPT A RESOLUTION APPROVING SEPARATE DESIGN PROFESSIONAL SERVICES AGREEMENTS WITH FIVE CONSULTING FIRMS: ALAN KROPP & ASSOCIATES, INC., BSK ASSOCIATES, GEOCON CONSULTANTS, INC., NINYO & MOORE, AND TWINING, INC. TO PROVIDE ON-CALL GEOTECHNICAL ENGINEERING & MATERIALS TESTING
SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH
RECOMMENDATION
Adopt a resolution approving separate design professional services agreements with five consulting firms:
Alan Kropp & Associates, Inc., BSK Associates, Geocon Consultants, Inc., Ninyo & Moore Geotechnical and Environmental Sciences Consultants (Ninyo & Moore), and Twining, Inc., to provide on-call geotechnical engineering and material testing services and authorizing the City Manager to execute same in an amount not to exceed $500,000 each.
REASONS FOR RECOMMENDATION
The ability to bring in consultants on an on-call, as-needed basis allows the City to provide better customer service to the public and better manage workloads to deliver projects within allotted timeframes.
BACKGROUND AND DISCUSSION
The City anticipates using contract services of consultant firms to perform work on various engineering related projects and efforts. This type of work is usually variable in scope and may be short-term assignments or may be part of larger capital or planning projects.
In order to meet the current and anticipated needs for project management services on various projects, City staff issued a Request for Qualifications (RFQ) for 11 different categories, including Geotechnical Engineering & Material Testing. Qualified consultants for the Geotechnical Engineering & Material Testing category submitted a Statement of Qualifications (SOQ) demonstrating their ability to perform a wide range of services, including but not limited to:
• Slide and erosion analysis with repair recommendations • Soils and foundation investigations
• Geological hazardous studies
• Field and laboratory materials testing services, including meeting the City’s Quality Assurance Plan requirements
• Geotechnical engineering consultations
• Peer review of geotechnical and soil reports for land development projects
The RFQ for On Call Engineering Consulting Services was released on February 27, 2023. Nine SOQs were submitted by the due date of April 21, 2023, for the Geotechnical Engineering & Material Testing category.
Date: September 26, 2023
Subject: ADOPT A RESOLUTION APPROVING SEPARATE DESIGN PROFESSIONAL SERVICES AGREEMENTS WITH FIVE CONSULTING FIRMS: ALAN KROPP & ASSOCIATES, INC., BSK ASSOCIATES, GEOCON CONSULTANTS, INC., NINYO & MOORE, AND TWINING, INC. TO PROVIDE ON-CALL GEOTECHNICAL ENGINEERING &
MATERIALS TESTING SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH
Staff reviewed the SOQs and ranked each firm by scoring them based on the following criteria as listed in the RFQ:
• Firm’s relevant experience and familiarity with issues applicable to the City’s needs (50%) • Qualifications of the firm and assigned individuals (25%) • Fee Structure and cost effectiveness of the consultants (15%) • Reference Checks (10%)
The firms Alan Kropp & Associates, Inc., BSK Associates, Geocon Consultants, Inc., Ninyo & Moore, and Twining, Inc., were deemed to possess all the requested areas of expertise listed above, have recent experience handling on-call services for municipalities, are available to commence services immediately, and have resources and staffing to complete assignments on a timely basis.
Each of the five firms listed above has been notified that they are being recommended for a contract in an amount not to exceed $500,000. The contracts will have an expiration date of June 30, 2026, and two one- year options to extend. The specific scope of services, schedule, and cost of work will be defined through statements of work for each assignment executed between the City and the consulting firm prior to beginning work on an assignment.
With increasing costs and urgent needs, staff recommends authorizing the City Manager to execute agreements with the five firms to provide on-call geotechnical engineering and material testing services in the amount not to exceed $500,000 for each contract.
This action will authorize the City Manager to execute agreements that will establish a pool of professional consultants under contract with the City, and will allow staff to best fit the expertise of a particular firm to the needs of an assignment.
FISCAL IMPACT
This proposed action will not have any direct impact on the General Fund. Funds to pay for these as-needed consultant services will come from Council approved budgets.
ENVIRONMENTAL REVIEW
This action is exempt from the California Environmental Quality Act (CEQA) because it is not a project which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to CEQA Guideline section 15378.
ATTACHMENTS
1. Reso - Award On Call Geotech Eng & Materials Testing_CAO Stamp
2. Alan Kropp - On-Call Design Professionals Agreement - Geotech Eng & Mat Testing_CAO Stamp
3. BSK - On-Call Design Professionals Agreement - Geotech Eng & Mat Testing_CAO Stamp
4. Geocon - On-Call Design Professionals Agreement - Geotech Eng & Mat Testing_CAO Stamp
5. Ninyo&Moore - On-Call Design Professionals Agreement - Geotech Eng & Mat Testing_CAO Stamp
6. Twining - On-Call Design Professionals Agreement - Geotech Eng & Mat Testing_CAO Stamp Date: September 26, 2023
Subject: ADOPT A RESOLUTION APPROVING SEPARATE DESIGN PROFESSIONAL SERVICES AGREEMENTS WITH FIVE CONSULTING FIRMS: ALAN KROPP & ASSOCIATES, INC., BSK ASSOCIATES, GEOCON CONSULTANTS, INC., NINYO & MOORE, AND TWINING, INC. TO PROVIDE ON-CALL GEOTECHNICAL ENGINEERING &
MATERIALS TESTING SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH
CONTACT
Melissa Tigbao, P.E., Public Work Director, 707-648-4433 [email protected]
RESOLUTION NO. 23- _____ N.C.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VALLEJO
APPROVING SEPARATE DESIGN PROFESSIONAL SERVICES AGREEMENTS WITH FIVE CONSULTING FIRMS: ALAN KROPP & ASSOCIATES, INC., BSK ASSOCIATES, GEOCON CONSULTANTS, INC., NINYO & MOORE, AND TWINING, INC. TO PROVIDE ON-
CALL GEOTECHNICAL ENGINEERING & MATERIAL TESTING SERVICES AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH
WHEREAS, the ability to bring in consultants on an on-call, as-needed basis allows the Public Works Department to provide better customer service to the public and better manage workload to deliver projects in a timely manner; and
WHEREAS, the City anticipates using contract services of consultant firms to perform work on various engineering related projects and efforts in the City of Vallejo; and WHEREAS, on February 27, 2023, the City of Vallejo Public Works Department published the Request for Qualification for On-Call Engineering Consulting Services requesting qualifications to create a readily available, pre-screened group of qualified consultants to be deployed as- needed to a wide range of technical specialties necessary to successfully complete projects in a timely and high-quality manner; and
WHEREAS, nine statements of qualification (SOQs) were submitted by the due date of April 21, 2023 for Geotechnical Engineering & Materials Testing services; and WHEREAS, each SOQ was given a score based on the demonstrated understanding of the services requested, the firm’s relevant experience, the qualifications of the firm and assigned individuals, the fee structure, and reference checks; and WHEREAS, the five firms Alan Kropp & Associates, Inc., BSK Associates, Geocon Consultants, Inc., Ninyo & Moore Geotechnical and Environmental Sciences Consultants (Ninyo & Moore), and Twining, Inc. were deemed to possess all the requested areas of expertise, have recent experience handling on-call services for municipalities, are available to commence services immediately, and have resources and staffing to complete assignments on a timely basis; and WHEREAS, each agreement is not to exceed $500,000, with the agreement having an expiration date of June 30, 2026, along with two options to extend in one-year increments.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Vallejo hereby approves separate Design Professional agreements with the following five consulting firms: Alan Kropp & Associates, Inc., BSK Associates, Geocon Consultants, Inc., Ninyo & Moore, and Twining, Inc. for geotechnical engineering & material testing services in an amount not to exceed $500,000 each.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to sign the above- referenced Design Professional Services Agreements, with any modifications recommended by the City Attorney and the City Clerk to attest the signing of those Agreements.
Adopted by the City Council of the City of Vallejo at a regular meeting held on September 26, 2023, with the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________________
ROBERT MCCONNELL, MAYOR
ATTEST:
______________________________________
DAWN G. ABRAHAMSON, CITY CLERK
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Alan Kropp & Associates, Inc. a California corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 2 of 11 insures all project participants for general liability exposures on a primary basis and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 3 of 11 employees, agents or subcontractors, if any, is an employee of City by virtue of this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licences, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 4 of 11 Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 5 of 11 or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 6 of 11 The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 7 of 11 to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 8 of 11 If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Alan Kropp
President /Principal Geotechnical Engineer
Alan Kropp & Associates, Inc.
2140 Shattuck Avenue
Berkeley, CA 94704
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 9 of 11 to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 10 of 11 shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Alan Kropp & Associates, Inc.
a California Corporation
By:___________________________
Alan Kropp
President
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Jeroen van den Berg
Senior Engineer
Alan Kropp & Associates, Inc.
2140 Shattuck Avenue
Berkeley, CA 94704
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on- call geotechnical engineering & material testing services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Design Professional’s obligations under this Agreement and Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 2 of 4 shall be grounds for termination.
Key personnel are as follows: Alan Kropp, Jeroen van den Berg Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Alan Kropp & Associates, Inc. CITY OF VALLEJO,
a California company a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost of living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Alan KroppPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and BSK Associates, a California corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 2 of 11 insures all project participants for general liability exposures on a primary basis and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 3 of 11 employees, agents or subcontractors, if any, is an employee of City by virtue of this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 4 of 11 Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 5 of 11 or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 6 of 11 The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 7 of 11 to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 8 of 11 If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Tim Rodriguez
Vice President & CCO
BSK Associates
399 Lindbergh Avenue
Livermore, CA 94551
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 9 of 11 to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 10 of 11 shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
BSK Associates
a California corporation
By:___________________________
Tim Rodriguez
Vice President & CCO
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Christiano Melo
Project Manager
BSK Associates
399 Lindbergh Avenue
Livermore, CA 94551
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on- call geotechnical engineering & material testing services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Design Professional’s obligations under this Agreement and Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 2 of 4 shall be grounds for termination.
Key personnel are as follows: Tim Rodriguez, Cristiano Melo Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
BSK Associates CITY OF VALLEJO,
a California company a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 1 of 5
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost of living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 2 of 5 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 3 of 5 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 4 of 5 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 5 of 5
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – BSKPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Geocon Consultants, Inc., a California Corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 2 of 11 insures all project participants for general liability exposures on a primary basis and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 3 of 11 employees, agents or subcontractors, if any, is an employee of City by virtue of this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 4 of 11 Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 5 of 11 or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 6 of 11 The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 7 of 11 to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 8 of 11 If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Shane Rodacker
Vice President
Geocon Consultants, Inc.
2480 Hilborn Road, Suite 240
Fairfield, CA 94534
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 9 of 11 to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 10 of 11 shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Geocon Consultants, Inc.
a California corporation
By:___________________________
Shane Rodacker
Vice President
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Shane Rodacker
Vice President
Geocon Consultants, Inc.
2480 Hilborn Road, Suite 240
Fairfield, CA 94534
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on- call geotechnical engineering & material testing services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Design Professional’s obligations under this Agreement and Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 2 of 4 shall be grounds for termination.
Key personnel are as follows: Shane Rodacker
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Geocon Consultants, Inc. CITY OF VALLEJO,
a California corporation a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 1 of 4
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost of living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 2 of 4 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 3 of 4 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeoconPage 4 of 4 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeconPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeconPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – GeconPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Ninyo & Moore Geotechnical and Environmental Sciences Consultants (Ninyo & Moore), a California corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 2 of 11 services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 3 of 11 contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 4 of 11 Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 5 of 11 or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 6 of 11 The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 7 of 11 to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 8 of 11 If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Avram Ninyo
President / Principal Engineer
Ninyo & Moore
1301 Marina Village Parkway, Suite 110
Alameda, CA 94501
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 9 of 11 to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 10 of 11 shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Ninyo & Moore,
a California corporation
By:___________________________
Avram Ninyo
President/ Principal Engineer
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Marlene Watson
Principal Engineer/ Contract Manager
Ninyo & Moore
1301 Marina Village Parkway, Suite 110
Alameda, CA 94501
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on- call geotechnical engineering & material testing services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Design Professional’s obligations under this Agreement and Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 2 of 4 shall be grounds for termination.
Key personnel are as follows: Avram Ninyo, Marlene Watson ,William Larkin Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Ninyo & Moore. CITY OF VALLEJO,
a California company a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 1 of 5
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost of living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 2 of 5 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 3 of 5 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 4 of 5 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 5 of 5
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – Ninyo&MoorePage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 1 of 11
DESIGN PROFESSIONAL SERVICES AGREEMENT
This Design Professional Services Agreement ("Agreement") is made at Vallejo, California, dated for reference this 27th day of September 2023, by and between the City of Vallejo, a municipal corporation ("City"), and Twining, Inc. a California Corporation, hereinafter referred to as Design Professional, who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Design Professional shall provide the City professional services as specified in Exhibit A, entitled “Scope of Work.”
2. Payment. City shall pay Design Professional for services rendered pursuant to this Agreement at the times and in the manner set forth in Exhibit B, entitled “Compensation.” The payments specified in Exhibit B shall be the only payments to be made to Design Professional for services rendered pursuant to this Agreement.
3. Facilities and Equipment. Design Professional shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement.
4. Indemnification. To the fullest extent permitted by law, Design Professional shall hold harmless, defend (with independent counsel approved by City) and indemnify City and its officers, employees and volunteers from and against all claims, damages, losses, penalties, fines and judgments and expenses and defense costs, including but not limited to attorney fees, court costs, associated investigation and administrative expenses, regardless of the nature or type arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Design Professional, or the acts or omissions of an employee, agent or subcontractor of the Design Professional, except where caused by the active negligence, sole negligence, or willful misconduct of City. In no event shall the cost to defend charged to the design professional exceed the design professional’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the design professional shall meet and confer with other parties regarding unpaid defense costs. The provisions of this section pertaining to the duty and cost to defend shall not apply to either of the following: 1) Any contract for design professional services, or amendments thereto, where a project-specific general liability policy insures all project participants for general liability exposures on a primary basis
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 2 of 11 and also covers all design professionals for their legal liability arising out of their professional services on a primary basis, 2) A design professional who is a party to a written design-build joint venture agreement.
The provisions of this Section are not limited by the insurance provisions of this Agreement.
The provisions of this section shall survive the completion of the services, expiration or termination of this Agreement.
5. Insurance Requirements. Design Professional agrees to comply with all of the Insurance Requirements set forth in Exhibit C, entitled “Insurance Requirements for Design Professional.” Failure to maintain required insurance at all times shall constitute a default and material breach.
6. Accident Reports. Design Professional shall immediately report (as soon as feasible, but not more than 24 hours) to the City Risk Manager any accident or other occurrence causing injury to persons or property during the performance of this Agreement. The report shall be made in writing and shall include, at a minimum: (a) the names, addresses, and telephone numbers of the persons involved, (b) the names, addresses and telephone numbers of any known witnesses, (c) the date, time and description of the accident or other occurrence.
7. Conflict of Interest. Consultant warrants and represents that to the best of its knowledge, there exists no actual or potential conflict between Consultant’s family, business, real property or financial interests and the services to be provided under this Agreement. Consultant shall comply with the City of Vallejo Conflict of Interest Code and not enter into any contract or agreement during the performance of this Agreement which will create a conflict of interest with its duties to City under this Agreement. In the event of a change in Consultant’s family, business, real property, or financial interests occurs during the term of this Agreement that creates an actual or potential conflict of interest, then Consultant shall disclose such conflict in writing to City. Every individual who performs services on behalf of Consultant pursuant to this Agreement must file a full Statement of Economic Interests (also known as Form 700) with the City Clerk if the work of the individual involves making a governmental decision whether to issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; authorizes the City to enter into, modify, or renew a contract; grants City approval of specifications for a contract; adopts or approves for the City any policy, standard or guideline; lobbies on behalf of the City, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code.
8. Independent Contractor. Design Professional is an independent contractor. Neither Design Professional nor any of Design Professional’s officers, employees, agents or subcontractors, if any, is an employee of City by virtue of Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 3 of 11 this Agreement or performance of any services pursuant to this Agreement. City shall have the right to control Design Professional only insofar as the results of Design Professional’s services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Design Professional accomplishes services pursuant to this Agreement.
9. Licenses, Permits, Etc. Design Professional represents and warrants to City that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services to be performed under this Agreement and that Design Professional has all the permits, qualifications and approvals of whatsoever nature which are legally required for Design Professional to practice its profession. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Design Professional to practice its profession.
10. Business License. Design Professional and its subcontractors, has obtained or agrees to apply prior to performing any services under this Agreement to City’s Finance Department for a business license, pay the applicable business license tax and maintain said business license during the term of this Agreement.
The failure to obtain such license shall be a material breach of this Agreement and grounds for termination by City. No payments shall be made to Design Professional until such business license(s) has been obtained.
11. Standard of Performance. Design Professional shall provide products and perform all services required pursuant to this Agreement in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional’s profession currently practicing in California.
Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, as well as all areas appurtenant to the site, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state, and local laws and regulations, and all other contingencies or design considerations. Data, calculations, opinions, reports, investigations, and other similar information provided by City relating to site, local, or other conditions is not warranted or guaranteed, either expressly or implied, by City.
Design Professional’s responsibilities under this section shall not be delegated.
Design Professional shall be responsible to City for acts, errors, or omissions of Design Professional’s subcontractors.
Design Professional shall prepare plans, specifications, reports, and/or other work products in such a way that amendments or change orders to the Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 4 of 11 agreement between City and its construction contractor will not be necessary, except for unforeseeable circumstances. As used herein, “unforeseeable circumstances” shall mean facts or inferences from those facts that could not be ascertained by a combination of reasonable site inspection during the preparation of the plans and specifications by Design Professional and the reasonable application to such inspection of expertise consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional‘s profession currently practicing in California.
Whenever the scope of work requires or permits review, approval, conditional approval or disapproval by City, it is understood that such review, approval, conditional approval or disapproval is solely for the purposes of administering this Agreement and determining whether the Design Professional is entitled to payment for such work, and not be construed as a waiver of any breach or acceptance by the City of any responsibility, professional or otherwise, for the work, and shall not relieve the Design Professional of responsibility for complying with the standard of performance or laws, regulations, industry standards, or from liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of Design Professional.
12. Force Majeure. Neither party shall be considered in default of this Agreement to the extent performances are prevented or delayed by any cause, or circumstances beyond either party’s reasonable control, such as war, riots, strikes, lockouts, work slowdown or stoppage, acts of God, such as floods or earthquakes, and electrical blackouts or brownouts.
In the event that the Design Professional is unable to meet the completion date or schedule of services, Design Professional shall immediately inform the City Representative of this in writing. If additional time is required to perform the work, the City Representative may adjust the schedule.
13. Time is of the Essence. Time is of the essence in this Agreement. Any reference to days means calendar days, unless otherwise specifically stated.
14. Personnel. Design Professional agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement.
The payment made to Design Professional pursuant to this Agreement shall be the full and complete compensation to which Design Professional and Design Professional’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Design Professional nor Design Professional’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. The City will not make any federal or state tax withholdings on behalf of Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 5 of 11 Design Professional. The City shall not be required to pay any workers' compensation insurance on behalf of Design Professional.
Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
Design Professional shall comply with all provisions of California laws dealing with prevailing wages, apprentices, and hours of work. Design Professional shall also comply with provisions of Labor Code section 1720 as applicable. A copy of the prevailing wage rates is available for review upon request by Design Professional to the City Representative. This provision applies only to the following portions of the scope of work:
15. Design Professional Not Agent. Except as authorized under this Agreement or as City may authorize in a letter of authorization signed by the City Manager or his or her designee, Design Professional shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent.
Design Professional shall have no authority, express or implied, under this Agreement, to bind City to any obligation whatsoever.
16. Term. The term of this Agreement shall commence on September 27, 2023 and shall continue in full force and effect until June 30, 2026.
City shall, at its discretion, have the right to extend the term of this Agreement, in intervals of one year, by written notice to Design Professional. The total duration of this Agreement, including the exercise of any options under this section, shall not extend past June 30, 2028.
If the term of this Agreement extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is contingent on the appropriation of funds for such purpose by the City Council of the City of Vallejo.
If funds to effect such continued payment are not appropriated, Design Professional agrees to terminate any services supplied to City of Vallejo under this Agreement, and relieve City of any further obligation therefore.
17. Termination or Abandonment by City. The City has the right, at any time and in its sole discretion, to immediately terminate or abandon any portion or all of the services to be provided under this Agreement by giving notice to Design Professional. Upon receipt of a notice of termination, Design Professional shall perform no further work except as specified in the notice. Before the date of termination, Design Professional shall deliver to City all City records and documents, all work products, whether completed or not, as of the date of termination and not otherwise previously delivered.
The City shall pay Design Professional for services performed in accordance with this Agreement before the date of termination. If this contract provides for Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 6 of 11 payment of a lump sum for all services or by task and termination occurs before completion of the work or any defined task which according to the performance schedule was commenced before the notice of termination, the fee for services performed shall be based on an amount mutually agreed to by City and Design Professional for the portion of work completed in conformance with this Agreement before the date of termination. In addition, the City will reimburse Design Professional for authorized expenses incurred and not previously reimbursed. The City shall not be liable for any fees or costs associated for the termination or abandonment except for the fees, and reimbursement of authorized expenses, payable pursuant to this section.
18. Products of Consulting Services. The work product, including without limitation, all writings, work sheets, reports, recordings, drawings, files, detailed calculations and other work products, whether complete or incomplete, of Design Professional resulting from services rendered pursuant to this Agreement, shall become the property of City. Design Professional agrees that all copyrights which arise from creation of the work under this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Design Professional makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work.
Documents submitted to the City in electronic format shall be formatted according to specifications provided by the City, or if not otherwise specified, in Microsoft Word, Excel, PowerPoint or other Microsoft Office Suite (2002) format as appropriate for the particular work product or, if directed by the City Representative in Adobe Acrobat PDF format.
19. Cooperation by City. City shall, to the extent reasonable and practicable, assist and cooperate with Design Professional in the performance of Design Professional’s services hereunder.
20. Assignment and Subcontracting. Design Professional shall not subcontract, assign or transfer voluntarily or involuntarily any of its rights, duties or obligation under this Agreement without the express written consent of the City Manager or his or her designee in each instance. Any attempted or purported assignment of any right, duty or obligation under this Agreement without City’s consent shall be void and of no effect.
If subcontracting of work is permitted, Design Professional shall pay its subcontractor within ten (10) days of receipt of payment by City for work performed by a subcontractor and billed by the Design Professional. Use of the term subcontractor in any other provision of this contract shall not be construed to imply authorization for Design Professional to use subcontractors for performance of any service under this Agreement.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 7 of 11 The City is an intended beneficiary of any work performed by Design Professional’s subcontractor for purposes of establishing a duty of care between the subcontractor and City.
21. Successors and Assigns. All terms, conditions, and provisions of this Agreement shall apply to and bind the respective heirs, executors, administrators, successors, and assigns of the parties. Nothing in this section is intended to affect the limitation on assignment.
22. Non-Discrimination/Fair Employment Practices.
(a) Design Professional shall not, because of race, religious creed, color, sex, national original, ancestry, disability, medical condition, age, marital status or sexual orientation of any person, refuse to hire or employ, or to bar or discharge from employment, or to discriminate in compensation, or in terms, conditions or privileges any person, and every employee will receive equal opportunity for employment and shall be granted equal treatment with respect to compensation, terms, conditions or other privileges of employment, without regard to his race, religious creed, color, sex, national origin or ancestry.
Design Professional warrants and represents it is an equal opportunity employer and agrees it shall not discriminate on the basis of race, religious creed, color, sex, national origin, ancestry, disability, medical condition, age, marital status or sexual orientation in the selection and retention of employees, subcontractors or procurement of materials or equipment.
In all solicitations either by competitive bidding or negotiations made by Design Professional for work to be performed under any subcontract, including procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Design Professional of Design Professional’s obligation under this Agreement relative to nondiscrimination and fair employment practices.
Design Professional shall include the above provisions of this section in every subcontract, including procurement of materials or equipment. (b) Design Professional agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations and City ordinances and regulations hereinafter enacted.
23. Notices. All notices or instruments required to be given or delivered by law or this Agreement shall be in writing and shall be effective upon receipt thereof and shall be by personal service or delivered by depositing the same in any United States Post Office, registered or certified mail, postage prepaid, addressed to:
If to City: Melissa Tigbao
Public Works Director
City of Vallejo- Public Works Department
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 8 of 11 555 Santa Clara Street
Vallejo, CA 94590
If to Design Professional: Linas Vitkus
Chief Operating Officer
Twining, Inc.
5027 Commercial Circle, Suite G
Concord, CA 94520
Any party may change its address for receiving notices by giving written notice of such change to the other party in accordance with this section.
Routine administrative communications shall be made pursuant to section 1 of Exhibit A.
24. Integration Clause. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. This Agreement shall not be amended or modified except by a written agreement executed by each of the parties hereto.
25. Severability Clause. Should any provision of this Agreement ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable.
26. Law Governing. This Agreement shall in all respects be governed by the law of the State of California, without regard to its conflicts of law rules. Litigation arising out of or connected with this Agreement shall be instituted and maintained in the courts of Solano County in the State of California or in the United States District Court, Eastern District of California, Sacramento, California, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
27. Waiver. Waiver by either party of any default, breach or condition precedent shall not be construed as a waiver of any other default, breach or condition precedent or any other right hereunder.
28. Ambiguity. The parties acknowledge that this is a negotiated agreement, that they have had the opportunity to have this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party's draftsmanship thereof.
29. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 9 of 11
30. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
31. Compliance with Laws. Design Professional will comply with all statutes, regulations and ordinances in the performance of all services under this Agreement.
32. Confidentiality of City Information. During the performance of services under this Agreement, Design Professional may gain access to and use City information regarding, but not limited to, procedures, policies, training, operational practices, and other vital information (hereafter collectively referred to as "City Information") which are valuable, special and unique assets of the City. Design Professional agrees that it will not use any information obtained as a consequence of the performance of services under this Agreement for any purpose other than fulfillment of Design Professional’s scope of work , to protect all City Information and treat it as strictly confidential and proprietary to City, and that it will not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party, other than its own employees, agents or subcontractors who have a need for the City Information for the performance of services under this Agreement, without the prior written consent of City, or as required by law.
Design Professional shall treat all records and work product prepared or maintained by Design Professional in the performance of this Agreement as confidential.
A violation by Design Professional of this section shall be a material violation of this Agreement and will justify legal and/or equitable relief.
Design Professional’s obligations under this section shall survive the completion of services, expiration or termination of this Agreement.
33. News and Information Release. Design Professional agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Representative.
34. City Representative. The City Representative specified in Exhibit A, or the representative's designee, shall administer this Agreement for the City.
35. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
36. Facsimile Signature; Electronic Signature. This Agreement shall be Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 10 of 11 binding upon the receipt of facsimile signatures or emailed by PDF or otherwise.
Any person transmitting his or her signature by facsimile or electronically shall promptly send an original signature to the other party pursuant to the notice provision of this Agreement. The failure to send an original shall not affect the binding nature of this Agreement.
37. Authority. The person signing this Agreement for Design Professional hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Design Professional.
38. Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Work,” including any attachments Exhibit B, entitled “Compensation,” including any attachments Exhibit C, entitled “Insurance Requirements,” including attachments [SIGNATURES ON FOLLOWING PAGE]
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 11 of 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year shown below the name of each of the parties.
Twining, Inc.,
a California corporation
By:___________________________
Linas Vitkus
Chief Operating Officer
DATE: ____________________
(City Seal)
CITY OF VALLEJO,
a municipal corporation
By: _____________________________
Michael Malone
City Manager
DATE: _____________________
ATTEST:
By: ___________________________
Dawn G. Abrahamson
City Clerk
APPROVED AS TO CONTENT:
_______________________________
Melissa Tigbao
Public Works Director
APPROVED AS TO FORM:
_______________________________
Veronica A.F. Nebb
City Attorney
APPROVED AS TO INSURANCE:
________________________________
Armond Sarkis
Risk Manager
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 1 of 4
SCOPE OF WORK
1. Representatives.
The City Representative for this Agreement is:
Dan Sequeira
City Engineer / APWD
City of Vallejo -Public Works Department
555 Santa Clara Street
Vallejo, CA 94590
[email protected]
The Design Professional’s Representative for this Agreement is:
Gabriel Hernandez
Engineering Manager
Twining, Inc.
5027 Commercial Circle, Suite G
Concord, CA 94520
[email protected]
All routine administrative communications between the parties will be between the above-named representatives and may be by personal delivery, mail, facsimile transmission or electronic mail as agreed between the Design Professional Representative and City’s Representative.
2. Services to be Provided. Consultant shall provide on- call geotechnical engineering & material testing services for specific projects as may be requested by the City Engineer or staff; such services shall be defined, scheduled, and authorized in subsequent Statement of Works. The services provided throughout the term of this Agreement may include the services specified in the Request for Qualifications issued February 27, 2023.
The Statement of Work shall be substantially in the form as shown in Attachment 1 of Exhibit A, attached hereto and incorporated herein by this reference.
3. Key Personnel. All of the individuals identified below are necessary for the successful prosecution of the services due to their unique expertise and depth and breadth of experience. There shall be no change in the personnel listed below, without written approval of the City Representative. Design Professional recognizes that the composition of this team was instrumental in the City’s decision to award the work to Design Professional and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Design Professional’s obligations under this Agreement and Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 2 of 4 shall be grounds for termination.
Key personnel are as follows: Linas Vitkas, Gabriel Hernandez, Teri Ozuna Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 3 of 4 Attachment 1 of Exhibit A
CITY OF VALLEJO
STATEMENT OF WORK
Statement of Work No..____________
This Statement of Work, effective this ____ day of , 20__ , (“Effective Date”) is issued under and subject to all the terms and conditions of the Master Consultant and Professional On-Call Agreement (“Agreement”), dated as of , 20__ , by and between the City of Vallejo (“City”) and [type in name], [type in the type of entity], (“Consultant”).
Capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
SECTION 1. SCOPE OF WORK.
The scope of work authorized by this Statement of Work is as described below. [Insert Project description or attach a copy of the proposal and incorporate it by reference as Attachment ____ to Statement of Work No. ____].
SECTION 2. TIME OF PERFORMANCE.
a. The start date shall be [insert date] and the completion date shall be [insert date].
SECTION 3. ESTIMATED COST AND COMPENSATION.
All services performed under this Statement of Work shall be performed on a time and materials basis.
City agrees to pay Consultant for the services set forth in this Statement of Work in an amount not to exceed [insert dollar amount in words - e.g. Two Thousand Five Hundred Fifty Dollars and 13 Cents] [insert dollar amount in number- e.g., $2,550.13].
This Statement of Work is released as authorization for work to commence. The parties agree to perform their respective obligations under this Statement of Work in accordance with the terms and conditions of the Agreement.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 4 of 4 IN WITNESS WHEREOF, the parties have executed this agreement on the day and year shown below the name of each of the parties.
Twining, Inc., CITY OF VALLEJO,
a California corporation a municipal corporation
By: By:
[INSERT SIGNER] Melissa Tigbao
[INSERT SIGNER TITLE] Public Works Director
DATE: ______ DATE: ______
Vallejo Business License No.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 1 of 7
EXHIBIT B
COMPENSATION
1. Design Professional’s Compensation.
A. Services: City agrees to pay Design Professional, at the rate(s) specified below, for those services set forth in Exhibit A of this Agreement and for all authorized reimbursable expenses, for a total not to exceed Five Hundred Thousand Dollars and zero cents [ $500,000.00].
Design Professional shall notify City in writing no later than thirty (30) days prior to the estimated date when Design Professional will have billed City the maximum payment amount permitted under this Agreement, and Design Professional shall provide City with an estimate of the additional compensation required to complete the project.
B. Additional Services:
1. Additional Services are those services related to the scope of Services of Consultant as set forth in Exhibit A but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when a Supplemental Agreement authorizing such Additional Services is approved by the City Manager, or his or her designee. City reserves the right to perform any Additional Services with its own staff or to retain other Consultants to perform said Additional Services.
2. Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established below. City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
2. Appropriate Billable Hourly Rates for Services and Additional Services. Design Professional’s billable hourly rates shall be as listed in Attachment 1 of Exhibit B, attached hereto and incorporated herein by this reference. Current rates for each task/project will be defined in each Statement of Work.
Rate Increases: Upon approval of City, Design Professional shall be permitted to increase rates to adjust for cost of living wage increases at the beginning of the fiscal year or as agreed upon by City and Design Professional. No price increases may be implemented without prior written approval of City. Requests for price increases must be made a minimum of ninety (90) days prior to the proposed effective date of the rate increase. To request a price increase, Design Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 2 of 7 professional must submit a letter with an itemized list showing revised prices by line item. If City approves the price increase, Design Professional shall be notified in writing, no price increase will be effective until Design Professional receives this notice.
3. Design Professional’s Reimbursable Expenses. Reimbursable Expenses shall be limited to actual reasonable expenditures of Design Professional for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City.
4. Payments to Design Professional.
A. Payments to Design Professional shall be made within a reasonable time after receipt of Design Professional’s invoice, said payments to be made in proportion to services performed. Design Professional may request payment on a monthly basis. Design Professional shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of City.
B. All invoices submitted by Design Professional shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Amount of this Invoice (Itemize all Reimbursable Expenses”)
6. Total Billed to Date
C. Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Design Professional for correction. City shall not be responsible for delays in payment to Design Professional resulting from Design Professional’s failure to comply with the invoice format described above.
D. Invoices, account statements and payment inquiries shall be emailed to :
5. Accounting Records of Design Professional. Design Professional shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Design Professional’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Design Professional’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Design Professional shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 3 of 7 other government agencies during regular business hours upon twenty-four (24) hours’ notice.
The obligations of Design Professional under this section shall survive this Agreement.
6. Taxes. Design Professional shall pay, when and as due, any and all taxes incurred as a result of Design Professional’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
7. Taxpayer Identification Number. Design Professional shall provide City with Design Professional’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 4 of 7 Attachment 1 of Exhibit B
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 5 of 7
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 6 of 7
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 7 of 7
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 1 of 3
EXHIBIT C
INSURANCE REQUIREMENTS
Design Professional shall procure and maintain for the duration of this Agreement, including any extensions thereto, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of services hereunder by the Consultant, their agents, representatives, or employees or subcontractors.
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
A. Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
B. Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 any auto and endorsement CA 0025.
C. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
D. Professional Liability insurance appropriate to the Consultant’s profession (Errors and Omission).
2. Minimum Limits of Insurance. Design Professional shall maintain limits no less than:
A. General Liability: $5,000,000.00 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, coverage shall be twice the per occurrence amount.
B. Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage.
C. Workers’ Compensation and Employer's Liability: $1,000,000.00 per accident for bodily injury or disease. If Borrower is not subject to California Workers’ Compensation requirements, Borrower shall file a completed certificate of exemption form which may be obtained from the City of Vallejo prior to commencing any activity authorized hereunder.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 2 of 3 D. Professional Liability, (Errors and Omission): $3,000,000.00 per occurrence coverage, continuing for 3 years after completion of services rendered.
3. Deductible and Self-Insured Retention. Any deductibles or self-insured retention greater than $10,000 must be declared to and approved by the City’s Risk Manager. If the deductibles or self-insured retention limit is unacceptable to the City’s Risk Manager, at his or her option, the insurer shall either reduce or eliminate such deductibles or self-insured retention as respects the City of Vallejo, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies, as can be provided, are to contain, or be endorsed to contain, the following provisions:
A. The City of Vallejo, its officers, officials, employees, agents and volunteers are to be covered as additional insureds as respects; liability, including defense costs, arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of protection afforded to the City of Vallejo, its officers, officials, employees, agents or volunteers. The insurance is to be issued by companies licensed to do business in the State of California.
B. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City of Vallejo, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Vallejo, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers.
D. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City.
Design Professional Services Agreement- On Call Geotech Eng & Mat Testing – TwiningPage 3 of 3 F. The workers’ compensation and employer’s liability policy required hereunder shall be endorsed to state that the workers' compensation carrier waives its right of subrogation against City, its officers, officials, employees, agents and volunteers, which might arise by reason of payment under such policy in connection with Consultant’s performance under this Agreement.
5. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
6. Verification of Coverage. Consultant shall furnish the City with certificates of insurance and original endorsements effecting general and automobile liability insurance coverage required by this clause. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences.
7. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. Payment Withhold. City will withhold payments to Consultant if the certificates of insurance and endorsements required in Paragraph F, above, are canceled or Consultant otherwise ceases to be insured as required herein.
CONSENT CALENDAR 8.H.
DATE: September 26, 2023
TO: Mayor and Members of the City Council
FROM: Melissa Tigbao, P.E., Public Works Director
Dan Sequeira, P.E., Assistant Public Works Director / City Engineer SUBJECT: ADOPT A RESOLUTION APPROVING SEPARATE CONSULTANT AND PROFESSIONAL SERVICES AGREEMENTS WITH FOUR CONSULTING FIRMS: CSG CONSULTANTS, INC., GHIRARDELLI ASSOCIATES, INC., INTERWEST CONSULTING GROUP, INC., AND PARK ENGINEERING, INC., TO PROVIDE ON-CALL FEDERAL
CONSTRUCTION MANAGEMENT SERVICES AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH
RECOMMENDATION
Adopt a resolution approving separate Consultant and Professional Services Agreements with four consulting firms: CSG Consultants, Inc., Ghirardelli Associates, Inc., Interwest Consulting Group, Inc., and Park Engineering, Inc., to provide on-call federal construction management services, and authorizing the City Manager to execute same in an amount not to exceed $500,000 each.
REASONS FOR RECOMMENDATION
The ability to bring in consultants on an on-call, as-needed basis allows the City to provide better customer service to the public and better manage workloads to deliver projects within allotted timeframes.
BACKGROUND AND DISCUSSION
The City anticipates using contract services of consultant firms to perform work on various engineering related projects and efforts. This type of work is usually variable in scope and may be short-term assignments or may be part of larger capital or planning projects.
In order to meet the current and anticipated needs for project management services on various projects, City staff issued a Request for Qualifications (RFQ) for 11 different categories, including Construction Management (Federal). Qualified consultants for the Construction Management (Federal) category submitted a Statement of Qualifications (SOQ) demonstrating their ability to perform a wide range of services, including but not limited to:
• Administration
• Project inspection
• Quality assurance
• Materials testing
• Safety
• Claims mitigation
• Document control
• Labor compliance
• Construction management
• Constructability review
Date: September 26, 2023
Subject: ADOPT A RESOLUTION APPROVING SEPARATE CONSULTANT AND PROFESSIONAL SERVICES AGREEMENTS WITH FOUR CONSULTING FIRMS: CSG
CONSULTANTS, INC., GHIRARDELLI ASSOCIATES, INC., INTERWEST CONSULTING GROUP, INC., AND PARK ENGINEERING, INC., TO PROVIDE ON-
CALL FEDERAL CONSTRUCTION MANAGEMENT SERVICES AND AUTHORIZING
THE CITY MANAGER TO EXECUTE SAME IN AN AMOUNT NOT TO EXCEED $500,000 EACH