Attachment B
Consultant/Professional
Services Provider
Agreement,
CC24-097
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CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
BY AND BETWEEN
THE CITY OF VICTORVILLE
AND
TRANSTECH ENGINEERS, INC.
FOR
ON-CALL PLAN & MAP CHECKING SERVICES, PROJECT CC24-097
THIS CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT (hereinafter “Agreement”), dated this _______ day of ______________, 2024, for reference purpose only, is made and entered into by and between THE CITY OF VICTORVILLE, a municipal corporation located in the County of San Bernardino, State of California, hereinafter referred to as the “City”, and Transtech Engineers, Inc., a California corporation, hereinafter referred to as “Consultant.” City and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties.”
RECITALS:
WHEREAS, the City requires Consultant/Professional Services to provide On-Call Plan & Map Checking Services; and
WHEREAS, Consultant represents that it is fully qualified to perform the consulting and/or professional services required for performance under this Agreement by virtue of its experience and the training, education and professional skill of its principals and its employees; and
WHEREAS, in light of the facts set forth above, the City desires to retain the services of a qualified Consultant to provide, on an independent contractor basis, On-Call Plan & Map Checking Services; and
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS, CONDITIONS, AND
PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth fully herein.
Section 2. SCOPE OF SERVICES
Consultant shall provide to the City those services set forth in the Scope of Services, attached hereto as Exhibit “A” and incorporated as part of this Agreement by this reference.
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Section 3. COMPENSATION
The City shall pay to Consultant a sum not to exceed One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) for faithful performance of the services to be rendered under this Agreement, subject to the Proposal provisions of Section 4, below. No expense reimbursements, including, but not limited to, reimbursements for travel, parking, lodging, and/or meals shall be paid to Consultant unless such expense reimbursements: (i) are specifically provided for and described by nature and type in Exhibit “B”, below; (ii) appear on Consultant’s monthly invoices to City; (iii) are supported by the appropriate receipts and other such documentation as the City shall require; and (iv) are directly related to the Scope of Services to be performed under this Agreement. In addition, any and all reimbursements shall be made in accordance with any City policy governing same.
Section 4. COST PROPOSAL
The City shall pay Consultant as provided in the Cost Proposal, attached hereto as Exhibit “B” and incorporated as part of this Agreement by this reference. The provisions of Exhibit “B” notwithstanding, in order to receive payments, Consultant shall be required to submit to the City detailed monthly invoices which include, if applicable, a description of all services/tasks performed, the number of hours expended on each service/task, the name of the person performing the service/task, and expense reimbursement information, if any, as required by Section 3, above.
Provided that services have been satisfactorily rendered, invoices shall be paid by the City approximately thirty (30) working days following receipt of Consultant’s invoice.
Section 5. PREVAILING WAGES
a. In accordance with the provisions of the California Labor Code (1720,1770- 1776, 1810, 1813 and 1815, as amended and applicable), the State Director of Industrial Relations has determined the general prevailing rates of per diem wages in the locality where the Project is to be done. Copies of the updated Wage Determination rates are available from the State of California via the internet at
www.dir.ca.gov. Additionally, copies of the prevailing rate of per diem wages are on file at the City of Victorville Finance Department and shall be made available for review to any interested party on request. Notwithstanding anything in the Contract Documents to the contrary, to the extent applicable to Consultant’s services, Contractor and all subcontractors shall pay not less than said specified State of California rates to all workers employed by them in the execution of the work contemplated by this Agreement. Contractor shall be responsible for using correct and current prevailing wage rates.
b. AB219 (as applicable) adds Section 1720.9 to the Labor Code, the hauling and delivery of ready -mixed concrete to carry out a public works contract, with respect to contracts involving state agency or any political subdivision of the state. Section 1720.9 defines the term “ready-mixed” concrete and specifies that the rate of pay shall be the current prevailing wage “for the geographical area in which the factory or batching plant is located” as determined by the DIR.
The statute also requires a written agreement between the party hauling or delivering the ready - mixed concrete and the party that engaged its services.
The delivery company shall provide certified payroll records under Labor Code section 1776(a) to the party that engaged its services and to the general contractor within five working days after the employee has been paid, accompanied by a written time record within five working days after the
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employee has been paid, accompanied by a written time record. The time record must be certified by each driver for the performance of job duties.
c. An error on the part of any awarding body does not relieve the Contractor from the responsibility for payment of the correct State prevailing wage and compliance with the maintenance and inspection of payroll records, posting of prevailing wage rates at work site, employment of apprentices, and other requirements of California Labor Code Section 1720, et seq.; California Code of Regulations, Title 8, Section 16000 et seq.; and all other applicable State labor laws. Contractor further acknowledges and agrees that it will be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with those laws. Contractor will require the same of all its subcontractors.
NOTE: Copies of the Certified Payrolls, Proof of Payroll submissions and appropriate Lien Releases are required with each invoice to the City. Payment of the invoice may be delayed when Payroll related documents and/or lien releases are not included with the invoice. An error on the part on any awarding body does not relieve the Contractor from responsibility for payment of the prevailing wage of per diem wages and penalties pursuant to Labor Code (1770 - 1776).
Section 6. TERM OF AGREEMENT
This Agreement shall be for an Initial Term commencing on the date of full execution of the Agreement (the “Commencement Date”) and expiring on June 30, 2025 (the “Termination Date”) (the “Term”), unless terminated earlier pursuant to Section 21 of this Agreement. From and after the Termination Date, and upon subsequent Agreement by the Parties, this Agreement may continue on a month-to-month basis until terminated pursuant to Section 21 below.
This Agreement may be extended for Four (4) additional one-year periods (hereinafter “Option Periods”), at the option of City, subject to satisfactory performance as determined by the City. City shall give Consultant sixty (60) days advance written notice prior to the expiration the initial Term and sixty (60) days advance written notice prior to the expiration date of each subsequently exercised Option Period, if any, should the City decide to exercise its option(s) to extend. In the event City does not give Consultant such written notice of its option to extend, this Agreement shall terminate at the end of the then-current Term or Option Period without further notice from either Party, unless terminated earlier pursuant to the provisions of Section 21 below. Should the City fail to give Consultant the sixty (60) days written notice of its intention to exercise any Option Period, the City may, in its sole discretion, elect to exercise any Option Period at a later date, following written inquiry from Consultant.
Section 7. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the Parties that Consultant is an independent contractor and not an employee, agent, joint venture, or partner of the City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the City and Consultant or any employee or agent of Consultant. Both Parties acknowledge that Consultant is not an employee for state or federal tax purposes or any other purpose. Consultant shall retain the right to perform services for others during the term of this Agreement.
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Section 8. REPRESENTATIONS AND ACKNOWLEDGMENTS
REGARDING INDEPENDENT CONTRACTOR’S STATUS OF
CONSULTANT
a. Consultant represents and acknowledges the following:
(1) The City is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement.
(2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City.
(3) The services described in this Agreement can be performed without the use of City equipment, materials, tools, or facilities, unless otherwise provided under a separate Agreement.
(4) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement.
(5) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage, or other such compensation to any person employed by Consultant to perform the services described in this Agreement.
(6) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are employees of the City.
b. The City represents and acknowledges the following:
(1) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement.
(2) The City will not hire, supervise, or pay any employees or assistants working for Consultant pursuant to this Agreement. Nothing contained in this Agreement shall prevent the City from hiring Consultant’s employees or assistants after termination of this Agreement.
(3) Nothing in this Agreement shall be interpreted to imply that Consultant must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement.
(4) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement.
(5) Consultant is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement.
(6) Unless deemed necessary under certain circumstances, Consultant is not required to perform the services set forth in this Agreement at City Hall or on City-owned property.
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(7) Other than attendance at required public meetings and public hearings, and complying with the provisions of the Proposal set forth in Exhibit B and any procedural requirements set forth by law, Consultant is not required to perform the services set forth in this Agreement in any particular order or sequence.
(8) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest.
Section 9. NOT AGENT OF THE CITY
a. Nothing contained in this Agreement shall be deemed, construed, or represented by the City or Consultant or by any third person to create the relationship of principal and agent.
b. Consultant shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind the City to any obligation whatsoever.
Section 10. LICENSES AND PERMITS
Consultant represents that it has obtained and will maintain at all times during the Initial Term (and during the Option Period, if applicable) of this Agreement all business licenses, including but not limited to a City of Victorville business license, professional licenses or certifications, or permits necessary for performing the services described in this Agreement.
Section 11. STANDARD OF PERFORMANCE
a. Consultant agrees to perform all services required by this Agreement in a professional and competent manner, in accordance with the degree of skill and diligence which is normally employed by reputable professionals performing similar services under similar conditions in the same or similar locality. Such services shall also be performed in a manner which is reasonably satisfactory to Fredy A. Bonilla, City Engineer, or his designee.
b. By executing this Agreement, Consultant represents that it:
(1) Has thoroughly investigated and considered the services and work to be performed;
(2) Has investigated the issues regarding the scope of services to be provided;
(3) Has carefully considered how the services and related work should be performed; and
(4) Fully understands the facilities, difficulties and restrictions associated with performance of the services required by this Agreement.
Section 12. FAMILIARITY WITH WORK
Should Consultant discover any latent or unknown conditions materially differing from those inherent in the services or as represented by the City, Consultant shall immediately inform the City
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of such fact and shall not provide any services, except at Consultant's risk, until written instructions are received from Fredy A. Bonilla, City Engineer, or his designee.
Section 13. CONFLICTS OF INTEREST
Consultant covenants that it does not have any interest, nor shall it acquire any interest, directly or indirectly, which would conflict in any manner with the performance of Consultant’s services under this Agreement. Consultant further covenants that in the performance of services under this Agreement, no officer, employee or agent of Consultant having such interest shall be employed by it. In the event the City determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Consultant shall file such Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the City Clerk. Acquisition or maintenance of a conflicting interest by Consultant may result in termination of this Agreement by the City.
Section 14. COMPLIANCE WITH LAWS
Consultant shall comply with all local, state, and federal laws and regulations applicable to the services to be rendered hereunder, including any rule, regulation, or bylaw governing the conduct or performance of Consultant or its employees, officers, or board members.
Section 15. COMMERCIAL GENERAL AND AUTOMOBILE
LIABILITY INSURANCE
a. Consultant shall procure and maintain at its own expense, during the Initial Term of this Agreement (and during the Option Period, if applicable) , Commercial General Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by Consultant or its officers, employees, servants, volunteers, and agents and independent contractors.
b. Consultant shall further procure and maintain, at its own expense, during the Initial Term of this Agreement, (and during the Option Period, if applicable), Commercial Vehicle Liability Insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit, covering any vehicle utilized by Consultant or its officers, employees, servants, volunteers, agents and independent contractors in performing the services required by this Agreement.
Section 16. WORKERS' COMPENSATION INSURANCE
a. Consultant shall procure and maintain at its own expense, during the Initial Term of this Agreement (and during the Option Period, if applicable), Workers' Compensation Insurance, providing coverage as required by the California State Workers' Compensation Law.
b. If any class of employees employed by the Consultant pursuant to this Agreement is not protected by the California State Workers' Compensation Law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the City.
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Section 17. PROFESSIONAL LIABILITY INSURANCE
Professional Liability Insurance or Errors and Omissions insurance as appropriate to Consultant’s profession shall be required and written on a policy form specifically designed to provide coverage for and protect against the negligent acts, errors and omissions of the Consultant in the performance of the services required by this Agreement. A minimum limit of $1,000,000 per claim and in the aggregate must be provided.
Section 18. ADDITIONAL INSURED
Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, all insurance policies, except for the Workers' Compensation and Professional Liability, shall be endorsed to name the City and its officers, employees, servants, volunteers, agents and independent contractors, including, without limitation, the City Attorney, as Additional Insureds.
Section 19. WAIVER OF SUBROGATION RIGHTS
Consultant shall require the carriers of all required insurance policies, with exception to Professional Liability, to waive all rights of subrogation against the City and its officers, employees, servants, volunteers, agents, and independent contractors and subcontractors. Each policy of insurance shall be endorsed to reflect such waiver.
Section 20. PROOF OF INSURANCE COVERAGE;
REQUIRED ENDORSEMENTS
a. Consultant shall secure from a good and responsible company or companies authorized to transact insurance business in the State of California, the policies of insurance required by this Agreement and furnish to the City Clerk certificates of insurance evidencing the required coverage, and policy endorsements at least one (1) business day prior to the commencement of any services to be performed under this Agreement.
b. The policies and certificates of insurance shall be endorsed to provide that in the event of cancellation of any required insurance policy for any reason whatsoever, the City shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation is effective. In the case of cancellation for non-payment, ten (10) days advance written notice shall be given.
c. Each policy and certificate of insurance shall provide that the policy shall not be terminated or expire without first providing thirty (30) days written notice to the City of such termination or expiration.
d. Each policy and certificate of insurance shall provide that the policy will be maintained throughout the Initial Term (and during the Option Period, if applicable), of this Agreement.
e. The Commercial General Liability and Vehicle Liability policies shall be endorsed to contain the following provision: “For any claims related to this Agreement, Consultant’s coverage shall be primary with respect to the City. Any insurance maintained by the City shall be in excess of Consultant’s insurance and shall not contribute with it.”
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Section 21. TERMINATION OR SUSPENSION
a. This Agreement may be terminated or suspended without cause by either Party at any time, provided that the Party initiating the termination provides the other Party at least thirty (30) days advance written notice of such termination or suspension. In the event of such termination, the City shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
b. This Agreement may be terminated or suspended with cause by either Party at any time, provided that the Party initiating termination provides the other Party at least ten (10) days advance written notice of such termination or suspension. In the event of such termination, the City shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
Section 22. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
Section 23. INDEMNIFICATION
a. Except as set forth in Subsection b of this Section 23, and to the fullest extent permitted by law, Consultant shall immediately defend, indemnify, and hold harmless the City, its officers, employees, representatives, and agents (the “City Indemnitees”), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and reasonable attorneys’ fees, for any personal injuries, deaths, or property damage, including property owned by the City (collectively “Claims”) to the extent they arise out of Consultant's negligence or willful misconduct in the performance of the services described in this Agreement, unless such Claims are proven to be caused by the negligence or willful misconduct of the City Indemnitees.
b. The provisions of this Subsection b apply only in the event that Consultant is a design professional within the meaning of California Civil Code section 2782.8 (“Design Professional”). The term Design Professional, as defined in said section, is l imited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
(1) Notwithstanding the provisions of Subsection a above, to the extent that the services to be provided under this Agreement are those of a Design Professional, Consultant's duty to indemnify, hold harmless, and defend the City Indemnitees shall be limited to the extent that any Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its officers, agents, employees or subconsultants in the performance of the services described in this Agreement.
(2) In no event shall the costs of defense charged to Consultant exceed the Consultant’s proportionate percentage of fault, except as otherwise set forth in said Civil Code section 2782.8, the provisions of which are incorporated into this Agreement by this reference.
Nothing in this Subsection b shall be construed to require Consultant to provide indemnification for Claims caused by the active negligence or willful misconduct of the City Indemnitees.
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c. The City does not and shall not waive any rights that it may have against Consultant under this Section, because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions of this Section 23 shall apply regardless of whether said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense described herein.
d. The obligation to indemnify and defend, as set forth in this Section 23, is binding on the successors, assigns, or heirs of Consultant and shall survive the expiration or any early termination of this Agreement.
Section 24. REPORTS
Upon request by Fredy A. Bonilla, City Engineer, or his designee. or as otherwise required by this Agreement, including but not limited to, the Scope of Services set forth in Exhibit “A”, Consultant shall prepare and submit reports to the City concerning Consultant's performance of the services required by this Agreement.
Section 25. RECORDS
a. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable Fredy A. Bonilla, City Engineer, or his designee, to evaluate the cost and the performance of such services.
b. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles.
c. Fredy A. Bonilla, City Engineer, or his designee, shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
d. Records and supporting documents pertaining to the use of funds paid to Consultant hereunder shall be retained by Consultant and made available to Fredy A. Bonilla, City Engineer, or his designee, for purposes of performing an audit for a period of five (5) years from the date of termination of this Agreement.
Section 26. RESERVED
Section 27. CONFIDENTIALITY; OWNERSHIP OF WORK
a. Any and all documents and information obtained from the City or prepared by Consultant for the City shall be kept strictly confidential unless otherwise provided by applicable law. All City data, documents and information shall be returned to the City upon termination of the Agreement.
b. Any drawings, specifications, reports, records, documents, or other materials prepared by Consultant in the performance of services under this Agreement shall not be
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released publicly without the prior written approval of Fredy A. Bonilla, City Engineer, or his designee, or as required by applicable law.
c. Consultant shall not disclose to any other entity or person any information regarding the activities of the City, except with the prior written approval of Fredy A. Bonilla, City Engineer, or his designee, or as required by applicable law.
d. All original documents, reports, designs, computer files and all other materials prepared by Consultant in the course of performing the services pursuant to this Agreement, whether completed or in progress, are the property of the City and shall be surrendered to the City upon the completion of Consultant’s services or when requested by Fredy A. Bonilla, City Engineer, or his designee. Such materials may be used, reused or otherwise disposed of by the City without the permission of Consultant.
e. Consultant’s covenants under this Section 27 shall survive the termination of this Agreement.
Section 28. PRINCIPAL REPRESENTATIVES
a. Allen Cayir, President, or his designee is designated as the principal representative of Consultant for purposes of communicating with the City on any matter associated with the performance of the services set forth in this Agreement.
b. Fredy A. Bonilla, City Engineer, or his designee. shall be the principal representative of the City for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement.
c. Either Party may designate another individual as its principal representative by giving written notice of such designation to the other Party.
Section 29. MODIFICATIONS AND AMENDMENTS; EXTRA SERVICES
a. This Agreement may be modified or amended only by a written instrument signed by both Parties.
b. During the Initial Term, the City may request that the Consultant perform Extra Services.
As used herein, "Extra Services" means any services, which are determined by the City to be necessary for the proper completion of PROJECT TITLE, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. A written instrument signed by both Parties shall be required to authorize performance of and payment for Extra Services.
Section 30. ENTIRE AGREEMENT
a. This Agreement supersedes any and all prior or contemporaneous Agreements, either oral or written, between the City and Consultant with respect to the subject matter of this Agreement.
b. This Agreement contains all of the covenants and Agreements between the Parties with respect to the subject matter of this Agreement, and each Party to this Agreement acknowledges that
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no representations, inducements, promises, or Agreements have been made by or on behalf of any Party, except those covenants and Agreements in this Agreement.
c. No Agreement, statement, or promise with respect to the subject matter of this Agreement, which is not contained in this Agreement, or in a valid modification or amendment to this Agreement, shall be valid or binding on either Party.
Section 31. AMBIGUITIES
This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
Notwithstanding the foregoing, the Parties agree that Exhibit “B” is attached hereto for reference purposes and to the extent there are any ambiguities, inconsistencies or conflicts between the terms of this Consultant/Professional Services Standard Provider Agreement and Exhibit “B” the terms of this Consultant/Professional Services Standard Provider Agreement shall control and nothing set forth in Exhibit “B” shall be deemed to supersede any of the provisions of this Consultant/Professional Services Standard Provider Agreement.
Section 32. NOTICES
a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:
To the City: Fredy Bonilla, City Engineer
City of Victorville
14343 Civic Drive
Victorville, CA 92392
To Consultant: Allen Cayir, President
Transtech Engineers, Inc.
13367 Benson Ave.
Chino, CA 91710
b. Notices, payments, and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.
Section 33. NON-LIABILITY OF OFFICERS AND
EMPLOYEES
No officer or employee of the City or Consultant shall be personally liable to Consultant or City, or any successor in interest, in the event of any default or breach by the City or Consultant
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or for any amount, which may become due to Consultant or City or to its successor(s), or for any breach of any obligation of the terms of this Agreement.
Section 34. REVIEW BY ATTORNEYS
Each Party hereto has had its attorney(s) review this Agreement and all related documents.
Each Party hereto has consulted with its attorney(s) and has negotiated the terms of this Agreement based on such consultation.
Section 35. WAIVER
a. No waiver shall be binding unless executed in writing by the Party making the waiver.
b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision.
c. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of such provision or any of the remaining provisions of this Agreement.
Section 36. ASSIGNMENT
This Agreement shall not be assigned by either Party without prior written consent of the other Party.
Section 37. CARE OF WORK
The performance of services by Consultant or the payment of money by the City shall not relieve Consultant from any obligation to correct any incomplete, inaccurate, or defective work at no further cost to the City, when such incomplete, inaccurate or defective work is due to the negligence of Consultant.
Section 38. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 39. SUCCESSORS, HEIRS, AND ASSIGNS
Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties.
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Section 40. GENDER
In this Agreement, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another.
Section 41. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs, or sections contained herein is declared invalid, void, or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair, or invalidate any of the remaining sentences, clauses, paragraphs, or sections contained herein.
Section 42. GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.
Section 43. DEFAULT
a. Failure or delay by any Party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct, or remedy the alleged default within fifteen (15) days after receipt of written notice specifying such default and shall diligently complete such cure, correction, or remedy, such Party shall not be deemed to be in default hereunder.
b. The Party claiming that a default has occurred shall give written notice of default to the Party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured Party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein.
c. Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
d. In the event that a default by any Party to this Agreement may remain uncured for more than fifteen (15) days following written notice, as provided above, the injured Party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings.
Section 44. CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
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Section 45. VENUE
All proceedings involving disputes over the terms, provisions, covenants, or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in San Bernardino County, California.
Section 46. ATTORNEYS’ FEES
In the event any action, suit, or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement, or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
Section 47. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the City, until signed by the authorized representative(s) of Consultant, approved by the City’s Risk Manager, and executed by the authorized City personnel or Mayor.
Section 48. REPRESENTATIONS OF PARTIES AND PERSONS
EXECUTING AGREEMENT
a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.
b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.
Section 49. COUNTERPARTS
This Agreement may be executed by the Parties in counterparts, and when executed by each of the Parties, each counterpart shall be deemed to be a part of this Agreement.
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15 Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
THE CITY OF VICTORVILLE TRANSTECH ENGINEERS, INC.
By: ______________________________ By: _____________________________ Elizabeth Becerra, Allen Cayir,
Mayor President
Dated: ____________________________ Dated: ___________________________________
ATTEST
By: _______________________________
Jennifer Thompson,
City Clerk
Dated: _____________________________
By: ________________________________
Sandra Bostick,
Risk Manager
Dated: _____________________________
APPROVED AS TO STANDARD FORM:
By: ________________________________
Andre de Bortnowsky,
City Attorney
Dated: _____________________________
16 Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097
EXHIBIT A
SCOPE OF SERVICES
SEE ATTACHED
17 Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097
SCOPE OF SERVICES
1. STATEMENT OF PURPOSE
Qualified engineering consultants shall submit proposals to provide specialized planning services for its On -Call Plan & Map Checking Services to perform on -call plan and map check review and approval services on a project -by project basis. The Consultant shall perform, coordinate, and manage the tasks listed in this scope of services. The following tasks are not intended to be comprehensive or exclusive; they are merely set forth as a general outline of the work that shall be expected. The work under this agreement shall include the following:
2. CITY’S RESPONSIBILITIES
1. Receive submittal package from developer and check for completeness.
2. Provide copies of reference plans and studies of the surrounding area that are pertinent to the project.
3. Provide copies of the conditions of approval, and mitigation measures identified in the environmental review process.
4. Notify Service Provider that submittal package is ready for review.
5. Transmit map, special studies, and plan check comments received from Service Provider to developer.
3. SERVICES PROVIDER’S RESPONSIBILITIES
1. Coordinate online file sharing/digital transfer(s) of submittal packages, map check comments, plan check comments, and special studies comments to the City.
2. Check submittal package, plans, maps, and/or studies for completeness.
3. Review the following reference plans of surrounding areas to check for inconsistencies in design and/or boundary conditions:
a. Subdivision Map
b. Street Improvement Plans
c. Grading Plans
d. Storm Drain Plans
e. Sewer Improvement Plans
f. Water Improvement Plans
g. Site Plans
4. Perform Site visits to verify field conditions and look for unique site conditions.
5. Review and recommend for approval subdivision maps, certifying that they are technically correct and comply with the Subdivision Map Act and City ordinances.
6. Review and recommend for approval the following improvement plans to assure that City standards and generally accepted engineering principles and practices are met:
a. Street Improvement Plans
b. Storm Drain Plans
c. Grading Plans
d. Erosion Control Plans
e. Sewer Improvement Plans
f. Water Improvement Plans
18 Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097
g. Street Light Plans
7. Review and recommend for approval construction cost estimates submitted by developer.
8. Review soils reports and geotechnical/infiltration studies to identify unique design recommendations or conditions, checking for consistency with project design parameters and impr ovement plans, recommending for approval or requiring additional review by engineering department.
9. Review hydrology/drainage studies to identify unique design recommendations or conditions, checking for consistency with project design parameters and improvement plans, recommending for approval or requiring additional review by engineering department.
10. Review sewer and water feasibility studies to identify unique design recommendations or conditions, checking for consistency with project design parameters and improvement plans, recommending for approval or requiring additional review by engineering department.
11. Review PCMP/WQMP to identify unique design recommendations or conditions, checking for consistency with project design parameters and improvement plans, recommending for approval or requiring additional review by engineering department.
12. Review Scoping Agreements, VMT, and Traffic Impact Analysis Studies to identify unique design recommendations or conditions, checking for consistency with project design parameters and improvement plans, recommending for approval or requiring additional review by engineering department.
13. Review subdivision maps to check for consistency with improvement plans.
14. Review the conditions of approval, and mitigation measures identified in the environmental review process to check for consistency with improvement plans.
15. Check improvement plans for conformance with City standards and specifications, master planning documents, and NPDES requirements.
16. The service provider shall provide a written statement that the subdivision maps (if requested) and improvement plans are recommended for approval. The subdivision maps and improvement plans shall be approved and signed by a Civil Engineer registered by the State of California to practice civil engineering.
17. Review of the subdivision maps and imp rovement plans submittal shall be completed and returned to the City in a timely manner. It is expected that first time review of plans be returned to the City within four weeks and subsequent reviews of the plan returned within two weeks.
4. EXTRA WORK
Extra work is new or unforeseen work performed by the Consultant when the City determines that it is not covered by the Scope of Work. No extra work is authorized without written approval from the City. The Consultant shall immediately submit an RFI to the City requesting authorization to perform any extra work.
5. MONTHLY PROGRESS REPORT AND INVOICE
The Consultant shall submit a monthly invoice which shall be accompanied by a progress report that summarizes the work completed within the period. The Consultant can only
19 Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097
invoice for costs actually incurred before invoicing the City. All work shall be billed per the agreed unit prices set forth in the Cost Proposal.
6. PROJECT RECORDS AND DOCUMENTS
The Consultant is required to maintain copies of all required records at its office for the duration of services and submit to the City all original documents. All draft reports, final reports, or other documents shall be typed. Handwritten documents will not be accepted.
The City, duly authorized representatives, and other jurisdictional agencies shall have access to any documents, books, papers, and records of the consultant (which are directly pertinent to this project) for the purpose of making an audi t, examination, excerpts, and transcriptions. The City will be the owner of all original documents, and digital information.
All digital and/or computer-generated drawings shall be the property of the City and two (2) original hard copies shall be submitted to the City with a digital copy.
20 Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097
EXHIBIT B
COST PROPOSAL
See Attachment
EXHIBIT B
21/Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097
EXHIBIT B
22/Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097 Special Studies Fixed Cost
STUDY CONSULTANT COST
(FIXED)
WQMP
Preliminary $2310
Final $660
GEOTECHNICAL STUDY
Preliminary $2640
Final $3300
HYDROLOGY
Preliminary $990
Final $2640
DRAINAGE
Preliminary $1320
Final $1650
Additional fees will apply beyond the 3rd
submittal at an hourly rate of $165
The above fees are increased each year July 1st
automatically by the percentage change Los
Angeles-Long Beach-Anaheim California Consumer
Price Index-All Urban Consumers (“CPI-U”) for the
preceding twelve-month period as calculated for
February by the U.S. Department of Labor Bureau
of Labor Statistics and published by the United
States Bureau of Labor Statistic.
EXHIBIT B
23/Consultant/Professional Services Provider Agreement/Transtech Engineers, Inc./Project CC24-097