ATTACHMENT B
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CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
BY AND BETWEEN
THE CITY OF VICTORVILLE
AND
ALBERT A. WEBB ASSOCIATES
FOR
SANTA FE WASH SEWER REALIGNMENT,
PROJECT BM20-076-1
THIS CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT (hereinafter “Agreement”), dated this __________________ day of ______________, 20___, 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 Albert A. Webb Associates, 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 had a Consultant/Professional Services Provider Agreemen t (hereinafter referred to as “Original Agreement”) with the Consultant to provide Santa Fe Wash Sewer Realignment, under Project BM20-076; and
WHEREAS, on or about February 8, 2023, Amendment 1 was issued to the Original Agreement to increase the Compensation from $420,000.00 to $9 03,039.00, (approved by the Honorable City Council at their meeting held on February 7, 2023); and
WHEREAS, on or about September 18, 2024, Amendment 2 was issued to the Original Agreement to exercise the last option, extending the term through June 30, 2025, and revise the total Compensation from $903,039.00 to read $903,439.00; and
WHEREAS, the City requires additional Consultant/Professional Services for the Santa Fe Wash Sewer Realignment; however, the Original Agreement expired and there are no further one-year option periods available to extend; 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 expertise of its principals and its employees; and
WHEREAS, in light of t he facts set forth above, the City desires to retain the additional continued services of this qualified Consultant, specifically provided for and described by nature and type in Exhibit “A”, as part of this Agreement to provide, on an independent contractor basis, services for the Santa Fe Wash Sewer Realignment, under Project BM20-076-1, inclusive of the revised scope and remaining balance, in the total amount noted under Section 3, Compensation and further outlined in Exhibit B; and
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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.
Section 3. COMPENSATION
The City shall pay to Consultant a sum not to exceed Five Hundred Thirty-eight Thousand Four H undred Ninety -seven and 78/100 Dollars ($538,497.78 ) 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. RESERVED
Section 6. TERM OF AGREEMENT
This Agreement shall be for an Initial Term of Three (3) Years, commencing on July 1, 2025 (the “Commencement Date”) and expiring on June 30, 2028 (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.
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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 P arties 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.
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.
(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.
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(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.
(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 I nitial 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; WARRANTY
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 sim ilar 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, P.E., City Engineer, or his designee.
b. By executing this Agreement, Consultant warrants that it:
(1) Has thoroughly investigated and considered the services and work to be performed;
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(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 of such fact and shall not provide any services, except at Consultant 's risk, until written instructions are received from Fredy A. Bonilla, P.E., 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. C OMMERCIAL GENERAL AND AUTOMOBILE LIABILITY
INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement (and during the Option Period, if applicable) , Commercial G eneral 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.
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Section 16. WORKERS' COMPENSATION INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement ( and during the Option Period, if applicable), W orkers' 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.
Section 17. PROFESSIONAL LIABILITY INSURANCE
a. 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 , 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 or amendment 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 or amendment is effective. In the case of cancellation for non-payment, ten (10) days advance written notice shall be given.
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c. Each policy and certificate of insurance shall be endorsed to 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 be endorsed to 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 contract, the C onsultant’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.”
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”) which may 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.
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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 limited 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.
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, P.E., 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, P.E., 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.
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c. Fredy A. Bonilla, P.E., 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 t o Consultant hereunder shall be retained by Consultant and made available to Fredy A. Bonilla, P.E., 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 released publicly without the prior written approval of Fredy A. Bonilla, P.E., 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, P.E., 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, P.E., 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. Bruce Davis, P.E., Senior Vice President, 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, P.E., 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.
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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 I nitial 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 Santa Fe Wash Sewer Realignment, 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 Agreement s, 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 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 agains t 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.
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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 A. Bonilla, P.E., City Engineer
Engineering Department
City of Victorville
14343 Civic Drive
Victorville, CA 92392
To Consultant: Bruce Davis, P.E., Senior Vice President Albert A. Webb Associates
3788 McCray Street
Riverside, CA 92506
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 CITY OFFICERS AND
EMPLOYEES
No officer or employee of the City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to Consultant 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.
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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.
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, CIP# 77439
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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.
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.
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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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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
THE CITY OF VICTORVILLE ALBERT A. WEBB ASSOCIATES
By: ______________________________ By: ____________________________ Elizabeth Becerra, Bruce Davis, P.E.,
Mayor Senior Vice President
Dated: ___________________________ Dated: _________________________
ATTEST
By: ______________________________
Jennifer Thompson,
City Clerk
Dated: ___________________________
APPROVED AS TO STANDARD FORM:
By: ______________________________
Andre de Bortnowsky,
City Attorney
Dated: ___________________________
By: ______________________________
Sandra Bostick,
Risk Manager
Dated: ___________________________
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EXHIBIT A
SCOPE OF SERVICES
3788 McCray Street, Riverside, CA 92506 | P:951.686.1070 | F:951.788.1256 | www.webbassociates.com W.O. 2020-0203
May 15, 2 025
Mr. Victor J. Fajardo, P.E., Project Manager
CITY OF VICTORVILLE
14343 Civic Drive
Victorville, CA 92392
Re: Request for Budget Amendment Request (BAR) No. 2 - Santa Fe Wash Sewer Realignment Project BM20-076
Dear Mr. Fajardo:
Albert A. Webb Associates (WEBB) is under contract with the City of Victorville to provide Engineering Services for the design of the above project. The City authorized the original contract in October 2020 and issued a contract amendment in February 2023 to extend coverage to additional downstream areas and implement full-scale channel improvements on the western slope of the channel. Webb has performed investigation, field survey, initiated environmental studies, preparation of interim slope protection plans and coordination with private property owners.
In late 2023, the City discovered that the channel improvement would require significantly more effort than originally anticipated due to continuous erosion occurred over time and the presence of construction debris (mainly broken concrete) placed by property owners on the slope as an interim slope protection. Additionally, during the review of the utility agreement with BNSF, it was confirmed that the city is not responsible for maintaining the wash and may instead abandon the existing sewer line in place. In order to move the project forward in a timely and cost-effective manner, the City decided to concentrate on sewer infrastructure relocation.
Recently, the City decided to rescope the project as follows:
1. Segment south of Green Tree Boulevard – From Green Tree Boulevard to approximately 1000-feet south of Ottawa Street where the improved Santa Fe Wash ends: Relocate sewer main outside of BNSF right-of-way (ROW) and place it within a proposed 30-feet wide easement parallel with and adjacent BNSF ROW.
2. Segment north of Green Tree Boulevard - From Green Tree Boulevard to approximately 1500-feet north of Green Tree Boulevard: Relocate sewer main outside of Santa Fe Wash and place the sewer main in a reasonable location.
• Complete rescope environmental and permitting related tasks to accommodate the revised Scope changes.
WE
BB is pleased to provide you with this BAR No. 2. Enclosed you will find Scope of Work (Exhibit “A”), and the Compensation for Services (Exhibit “B”) for your review and consideration.
EXHIBIT A, SCOPE OF SERVICES, PROJECT BM20-076-1
17/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1 2 If you find this proposal acceptable, please issue a Budget Amendment to our office. We appreciate this opportunity to provide services and look forward to hearing from you. We will provide the City with an updated schedule upon receiving the Budget Amendment. If you have any questions regarding this proposal, please contact our office at 951-686-1070.
Sincerely,
ALBERT A. WEBB ASSOCIATES
Siming Z hang, P.E.
Senior Engineer
Bruce A . Davis, P.E.
Senior Vice President
Copy: Dennis Lee, P.E., Project Engineer
Attachments:
Appendix A – Original License Agreement between BNSF and the City Appendix B – Detailed Environmental Associated Scope of Work Appendix C – Original Contract (Reference Only)
Appendix D – Budget Amendment No 1 (Reference Only)
EXHIBIT A, SCOPE OF SERVICES, PROJECT BM20-076-1
18/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1 3 EXHIBIT “A” SCOPE OF WORK
Th
e City authorized the original contract in October 2020. The original contract focused on the sewer realignment and the tasks associated with the sewer realignment. There were no tasks related to channel improvements, other than minimal restoration work included in the environmental scope of work. See Attachment C for reference.
In October 2022, the City requested a scope revision to include an additional 1,500 feet of downstream area in order to gain access to the sewer lines by relocating the existing sewer pipe, which is currently buried beneath the BNSF Railroad embankment and is therefore entirely inaccessible any conditions.
Additionally, the revised scope of work included recovery of bench marks and control; preparation of interim slope protection plans; preparation of individual Right-Of-Entry exhibits. See Attachment D for reference.
The revised scope required completion of an extended hydrology and hydraulic study, Santa Fe channel improvement plan preparation, and updated technical studies for environmental documentation in the CEQA analysis.
The City recently discovered that the channel experienced severe erosion during the heavy rains over the past few years, resulting in significant soil loss along the slope. As a result, a substantial amount of imported fill is now required to restore the channel.
In addition, property owners placed construction debris-primarily crushed concrete-on the slope in an effort to mitigate further erosion. This material must be removed before any reconstruction or implementation of slope protection can begin, requiring a considerable amount of labor and time.
During a review of the utility agreement between the City and BNSF, it was also determined that maintenance of the channel-specifically the implementation of slope protection-is not the City’s responsibility. Therefore, the City may abandon the existing sewer pipe located within the western slope of the wash in place.
Given these findings, the City requested a further revision to the project scope to eliminate the channel improvement work entirely-except at key confluence areas-and to keep all construction activities away from the Santa Fe Wash, i.e., BNSF Channel.
Below summarizes the main scope changes after Budget Amendment Request (BAR No 1):
• Exclude proposed channel improvement plan, hydrology/hydraulic model for Santa Fe Wash.
• Incorporate the new development of Ottawa Development. • Rescope environmental and permitting related tasks to accommodate the revised Scope EXHIBIT A, SCOPE OF SERVICES, PROJECT BM20-076-1
19/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1 4 changes.
During the c ourse of rescoping the project, Webb and its sub-consultants have been continuously working on revised tasks for more than four (4) years. The significant efforts caused the substantial portion of the budget are spent. After coordinating with City and our subconsultants, we listed the following tasks needed to complete this project.
A – Additional fee for sewer improvement plan which include the following extra costs:
A1 - To assist the City with pulling original license agreement between City and BNSF. efforts include coordination with BNSF licensing department, preparation of the exhibit, searching for mile post and other information requested by BNSF licensing department.
The extra expenses also include filing fees to BNSF.
A
2. To cover the additional expenses for sewer design and geotechnical subconsultant (Converse) due to the cost increase. Note: the ENR was 12,067.47 dated October 2020 and the ENR is 15,979.64 dated April 2025. The net increase is 32.4%.
A3. Coordinate with Ottawa Development on site improvement plans, proposed 30-feet easement documentation and AutoCAD files.
B – Environmental related work, coordination and permitting.
Following the authorization of BAR #1 in February 2023, the project team coordinated compliance with additional environmental constraints and regulatory requirements, particularly those concerning the Western Joshua Tree and the delineation of jurisdictional boundaries by agencies such as the U.S. Army Corps of Engineers.
WEBB completed the required field surveys to support the Western Joshua Tree (WJT) Incidental Take Permit (ITP) application and had begun documenting the results. However, on July 10, 2023, the Governor of California signed the Western Joshua Tree Conservation Act, which streamlined the permitting process but introduced new application requirements. As a result, the existing surveys had to be redone, and the draft studies revised to meet the new permit standards under the Western Joshua Tree Conservation Act Incidental Take Permit.
These efforts exhausted a portion of the current contract budget allocated to environmental tasks that will no longer directly contribute to the preparation of environmental documents as originally planned. Considerable time was spent by WEBB coordinating internally, with the City, and with subconsultants to address regulatory updates and project modifications related to the Western Joshua Tree in 2023. In response to these regulatory changes, an additional budget is being requested to support the necessary work completed.
Additional work will be required to revise the technical studies in progress, including updates to the Biological Resources Assessment and Cultural Resources Assessment. The scope and EXHIBIT A, SCOPE OF SERVICES, PROJECT BM20-076-1
20/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1 5 associated costs for these services are included in this contract amendment and detailed in Appendix B - Compensation for Services.
C – Additional fee for legal descriptions and plat preparation:
Webb’s original fee for this task was significantly lower than the industry normal price. During more than 4 years course the costs went up more than 30%. Webb will absorb larger portion of the cost and request City for compensate a small portion.
D – Hydrology/hydraulic calculation for extended RCB design to accommodate City’s new 30-feet wide land/easement at the access road crossing the drainage tributaries conferencing into the Wash.
Prepare RCB construction drawings as part of sewer relocation plan.
E – Based upon the recent coordination with Ottawa Development. The Developer will provide City a 30-feet wide easement for access and maintenance. The efforts for land acquisition are reduced. We will credit City the reduced fee accordingly.
EXHIBIT A, SCOPE OF SERVICES, PROJECT BM20-076-1
21/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1 6 M
ap 1 – Revised Scope of Work and Project Limitation
EXHIBIT A, SCOPE OF SERVICES, PROJECT BM20-076-1
22/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1 CIP# 77439
23 Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20- 076-1
EXHIBIT B
C
OST PROPOSAL
S
ee Attachment
7 EXHIBIT “B” COMPENSATION FOR SERVICES
The
total fees for services shown in the Scope of Work (Exhibit A) are $102,000. This amount will not be exceeded without prior authorization. A breakdown of our fees is listed below:
Or
iginal BAR #1 BAR #2 Sub Total
Fee ($) Fee ($) Fee ($) Fee ($)
TASK 1 – Preliminary Design $39,400 $9,830 $0 $49,230
TASK 2 – Right-Of-Way Services $191,700 $172,929 (-$40,900) $323,729 TASK 3 – Geotechnical Investigation $18,000 $6,350 $7,135 $31,485 TASK 4 – Environmental (Webb/Dudek) $70,200 $126,144 $77,100 $273,444 TASK 5 – Public Agency/Utility Coordination. $48,400 $7,761 $0 $56,161 TASK 6 – Survey/Monument/Property Corner $0 $11,484 $0 $11,484 TASK 7 – Prepare Sewer Relocation Plan $32,500 $16,900 $14,472 $63,872 TASK 8 – Prepare (22) Individual ROE Exhibits $0 $11,260 $0 $11,260 TASK 9 – Prepare Bid Package $0 $5,851 $0 $5,815
TASK 10 – Prepare Legal Description and Plats $8,600 $0 $11,300 $19,900 TASK 11 – Utility Conflict Investigation $8,100 $0 $0 $8,100 TASK 12 – Prepare Interim Slope Protection Plan $0 $114,530 $0 $114,530 TASK 13 – H&H Calculation and RCB Design $0 $0 $8,493 $8,493 TASK 14 – Bidding Support $3,500 $0 $0 $3,500
Optional TASK – Environmental $0 $0 $24,400_ $24,400
TOTAL $420,400 $483,039 $1
02,000 $1,005,439
EXHIBIT B, COST PROPOSAL, PROJECT BM20-076-1
24/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1 8 Charges for in-house printing, copying, postage, outside services, and other services not specifically listed in the scope of work will be billed on a time and material basis in addition to the amount shown above in accordance with our attached Schedule of Fees. Checking and/or filing fees are not included in this contract, and shall be paid by the client directly to the appropriate governmental agency. Our services will be billed monthly on a time and materials basis by task.
If this is acceptable to you, please sign below with your authorization. Please also send us a Budget Amendment to our contract noting the same.
I authorize Albert A. WEBB Associates to proceed with the scope of work as noted above:
Signatures
Name
Date
EXHIBIT B, COST PROPOSAL, PROJECT BM20-076-1
25/Consultant/Professional Services Provider Agreement/Albert A. Webb Associates/Project BM20-076-1