Attachment E
Agreement - UltraSystems
Environmental, Inc.
1 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
BY AND BETWEEN
THE CITY OF VICTORVILLE
AND
ULTRASYSTEMS ENVIRONMENTAL, INC.
FOR
ON CALL ENVIRONMENTAL CONSULTING SERVICES,
PROJECT MS26-095-1
THIS CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT (hereinafter “ Agreement”), dated this _____ day of ____________________, 20__ for reference purposes only, is made and entered into by and between THE CITY OF VICTORVILLE, a California charter city and municipal corporation, hereinafter referred to as the “City”, and UltraSystems Environmental, Inc., a California corporation, hereinafter referred to as “Consultant.” City and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.”
RECITALS:
WHEREAS, the City requires Consultant/Professional Services to provide On-Call Environmental Consulting Services as described in the Request for Qualifications (“ RFQ”) issued for Project No . MS26-095 (the “Project”), the terms of which RFQ are incorporated as part of this Agreement by this reference; and
WHEREAS, Consultant provided a response to the RFQ for said Project and following an evaluation process was selected by the City to be a provider of On -Call Environmental Consulting Services; and
WHEREAS, Consultant represents and warrants that it is fully qualified and appropriately licensed to perform the 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, City does not have the personnel, specialized equipment, or technical expertise able to perform the work and services contracted for herein.
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 Environmental Consulting Services.
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:
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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. WORK ORDERS: SCOPE OF SERVICES
a. Consultant shall provide to the City such professional services as may be requested by the City in writing from time to time in individual written authorizations issued to Consultant (hereinafter “ Work Order” or “Work Orders ”). Such Work Orders shall be binding upon the City and Consultant only if approved and executed by both Parties. Consultant acknowledges that City is not obligated to issue any Work Orders under this Agreement.
b. The professional services to be performed and the schedule for performance shall be as described in each issued Work Order as an attachment, hereinafter the “ Scope of Services”. Consultant agrees to perform the professional services in accordance with the terms and conditions contained and incorporated into this Agreement, and in accordance with such terms and conditions as are specified in each executed Work Order, and in the specific Scope of Services attached thereto. Consultant acknowledges and agrees that if any Work Orders are funded in whole or in part with state or federal assistance (grant funds) that Consultant and any subcontractors and/or subconsultants will be required to comply with any terms and conditions applicable to such grant or funding, which shall be provided to Consultant and attached to the corresponding Work Order as part of the Scope of Services.
c. The Scope of Services to be attached to any Work Order may include the professional environmental services which were contained in the Scope of Work portion of the RFQ described in the Recitals, and which has been attached hereto as Exhibit “A ”.
Consultant shall not perform any services under this Agreement unless and until identified in a Work Order executed by both Parties.
d. Consultant acknowledges that this Agreement is non- exclusive, and that City may enter into agreements with others for services similar to those specified in this Agreement.
Section 3. COMPENSATION; SUBSEQUENT ON-CALL WORK ORDERS
a. Compensation to Consultant shall not exceed the sum of One Hundred Twenty- Five Thousand and 00/100 Dollars ($125,000.00) during each one (1) -year term, with an aggregate total contract amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) if all three (3) one (1) -year extensions are granted. However, actual payment of compensation to Consultant will only be made as set forth in Work Orders subsequently issued to Consultant and executed by both Parties for work/services, which may involve per project requests for quotes as set forth in Section 4, below.
b. 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”; (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 attached to Work Orders subsequently issued by the City and executed by the Parties. In addition, any and all reimbursements shall be made in accordance with any City policy governing same.
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Section 4. FEE SCHEDULE
a. The City shall pay Consultant based upon Consultant’s submitted Fee Schedule, attached hereto as Exhibit “B” , but only for such services/work as are authorized by and specified in Work Orders issued by the City which have been executed by both the Parties. b. City may request that Consultant perform non-complex or limited duration on-call work/services (which shall be performed at the rates set forth in the attached Exhibit “B”) or may issue per -project requests for submission of written quotes for more complex projects (which may be performed for rates/unit prices that vary from those Exhibit “B”, provided that good cause justifying any request variance is specified in Consultant’s written submitted quote).
The foregoing notwithstanding, absent a written amendment to this Agreement, in no event shall City’s total payments to Consultant exceed the compensation amount set forth in Section 3.a.
No Work Order can alter said compensation amount.
c. The provisions of Exhibit “B” and this Section notwithstanding, in order to receive payments, Consultant must submit to the City detailed monthly invoices which include, as applicable, this On -Call Agreement Project Number (MS26-095) and a Work Order or purchase order number issued by the City for services requested to identify a specific City project or job; 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. Each invoice shall further include a running balance of the On -call Agreement’s total contract expenditures to date.
Provided that services have been satisfactorily rendered, Consultant’s invoices shall be paid by the City approximately thirty (30) working days following the City’s receipt thereof. In the event of a conflict or inconsistency between this Agreement and Consultant’s submitted Fee Schedule attached as Exhibit “B”, the provisions of this Agreement shall prevail, and nothing set forth in Exhibit “B” shall be deemed to supersede the provisions of Section 5 of this Agreement.
Section 5. STATE PREVAILING WAGE AND RELATED LABOR PROVISIONS
a. Consultant is aware of the requirements of California Labor Code section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, section 16000, et seq., (collectively “Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects including, but not limited to, the design and preconstruction phases of a covered public works project. This Agreement is subject to Prevailing Wage Laws, for all work performed under this Agreement for which the payment of prevailing wage is required by those laws. Consultant shall defend, indemnify, and hold the City, its elected officials, officers, employees, and agents free and harmless from any claim or liability arising out of any failure or alleged failure of Consultant to comply with the Prevailing Wage Laws.
b. Pursuant to California Labor Code Section 1773, the City has obtained from the Director of the Department of Industrial Relations (“ DIR”) the general prevailing rate of per diem wages and the general prevailing wage rate for holiday and overtime work applicable for each craft, classification, or type of worker in San Bernardino County, California, where this Agreement is to be performed. Copies of these prevailing rate of per diem wages are on file at the City of Victorville Finance Department/Purchasing Division and shall be made available for review to any interested party on request. Copies of these prevailing rate of per diem wages are also available from the State of California via the internet at 4 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
http://www.dir.ca.gov/DLSR/PWD. Prevailing Wage requirements will be specified in Work Orders, and compliance with DIR registration and other applicable Prevailing Wage Law requirements shall be required prior to execution and performance of any such Work Order.
Section 6. TERM OF AGREEMENT
a. Unless earlier terminated in accordance with the provisions in Section 21 of this Agreement, the term of this Agreement shall be for a period of one (1) year , commencing on the date of full execution of the Agreement (the “ Commencement Date”) and expiring one (1) year after the Commencement Date (the “ Initial Term”). This Agreement shall automatically terminate and end upon the expiration of the Initial Term unless: (a) option periods are provided for in this Section and are exercised by the City; or (b) the term of this Agreement is extended by written agreement of the Parties prior to the expiration of the Initial Term. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines.
b. Subject to satisfactory performance as determined by the City, this Agreement may be extended at the option of the City for three (3) additional one-year periods (each hereinafter an “Option Period”). Should the City decide to exercise its option(s) to extend, City shall give Consultant sixty (60) days' advance written notice prior to the expiration date of the Initial Term and sixty (60) days' advance written notice prior to the expiration date of each subsequently exercised Option Period (if any). If City does not give Consultant such written notice of its option to extend, this Agreement shall terminate at the end of the Initial Term or at the end of the then-current Option Period (as applicable) without further notice from either Party, unless terminated earlier pursuant to the provisions of Section 21 or otherwise extended by written agreement of the Parties.
Section 7. INDEPENDENT CONTRACTOR STATUS
a. City retains Consultant on an independent contractor basis and not as an employee. The Parties hereto warrant and represent that Consultant is an independent contractor and not an employee, agent, joint venture, or partner of the City. The services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the Services subject to the requirements of this Agreement.
Any employees performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such employees in connection with their performance of Services under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such additional employees, including: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
b. 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 between the City and any of Consultant’s employees performing the Services under this Agreement on behalf of Consultant. The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage, or other compensation or benefits to any person employed by Consultant to perform the services described herein. Both Parties acknowledge that neither Consultant, nor any of its employees are considered City employees for state or federal tax purposes or for any other purpose. Consultant shall retain the right to 5 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
perform services for others during the term of this Agreement, provided that such work does not create a conflict of interest. Nothing in this Agreement shall be interpreted to imply that the Parties must maintain any contractual relationship with each other on a continuing basis after termination of this Agreement. Nothing contained in this Agreement shall prevent the City from hiring Consultant’s employees after termination of this Agreement.
c. Any provision of this Agreement that may appear to give the City a right to direct Consultant concerning the details of performing its obligations and/or duties under this Agreement, or to exercise any control over such performance, shall mean only that Consultant shall follow the direction of the City concerning the end results of the performance.
Section 8. 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 9. PRINCIPAL REPRESENTATIVES
a. Hina Gupta, Project Manager , or her 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, PE, City Engineer , or his designee (hereinafter “ City Project Manager”) shall be the principal representative of the City for purposes of communicating with Consultant on any matter associated with the performance of the services under this Agreement, and such other functions and duties as are specified elsewhere 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 10. LICENSES AND PERMITS
Consultant warrants and represents that it has obtained and will maintain at all times during the Initial Term of this Agreement and during any extensions or Option Periods, if applicable, 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; WARRANTIES
a. Consultant agrees to perform all services required by this Agreement, which shall be specified in a subsequently issued Work Order, 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 City’s Project Manager.
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b. By executing this Agreement and any subsequently issued Work Order, Consultant warrants that it has or shall:
(1) Thoroughly investigate and consider the services and work to be performed;
(2) 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 understand the facilities, difficulties and restrictions associated with performance of the services required by any Work Order subsequently issued by the City as contemplated by this Agreement.
c. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. Consultant shall notify City in writing of any changes in Consultant’s staff assigned. The Project Manager may, in its sole discretion, determine that a person assigned to perform services is not performing in accordance with the standards required herein. If the Project Manager makes such a determination, Consultant shall replace such person immediately.
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 in a Work Order, 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 City’s Project Manager.
Section 13. CONFLICTS OF INTEREST
a. The City covenants that no member, officer, or employee of the City engaged in the selection, award, or administration of this Agreement or any subsequent Work Orders issued for individual on- call projects hereunder shall have any prohibited conflict of interest, whether real or apparent, in any such contracts or the proceeds thereof.
b. Consultant warrants and represents that it has no known relationships with third parties, City Council members, or employees of City which would: (1) present a conflict of interest pursuant to California Government Code Section 1090, the Political Reform Act (Government Code § 81000 et seq .), or any other applicable conflict of interest law; or (2) prevent Consultant from performing the Services required by this Agreement.
c. 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 or which would constitute a violation of any conflict- of-interest law, including Section 81000 et seq . or Section 1090 et seq . of the California Government Code. 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.
d. Acquisition or maintenance of a conflicting interest by Consultant may result in termination of this Agreement by the City.
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e. 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.
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. Consultant shall not discriminate in the employment of persons or in the provision of services under this Agreement on the basis of any legally protected classification, including race, color, national origin, ancestry, sex or religion of such person.
Section 15. INSURANCE
a. Required Policies. Consultant shall be required to procure and maintain at its own expense at all times during the term of this Agreement (and during any option or extension periods) the following policies of insurance:
(1) Commercial General Liability Insurance (“CGL”) 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 acts or omissions of the Consultant or its officers, employees/personnel, servants, volunteers, agents, and Subcontractors.
(2) 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/personnel, servants, volunteers, agents, and Subcontractors in performing the services required by this Agreement.
(3) Professional Liability or Errors and Omissions Insurance as appropriate to Consultant’s profession 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 One Million Dollars ($1,000,000) per claim and in the aggregate must be provided.
(4) Workers' Compensation Insurance, as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(5) Reserved.
b. Additional Insurance Requirements. With respect to the policies of insurance set forth above, compliance with the following is also required:
(1) Additional Insureds . Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, all 8 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
insurance policies, except for the Workers' Compensation and Professional Liability, shall be endorsed, with coverage at least as broad as ISO form CG 20 10, to name the City and its officers, employees, servants, volunteers, agents, and independent contractors, including, without limitation, the City Attorney, as Additional Insureds.
(2) Waiver of Subrogation . Consultant shall require the carriers of all required insurance policies, with exception of the Professional Liability policy, to waive all rights of subrogation against the City and its officers, employees, servants, volunteers, agents, independent contractors, and subcontractors. Each policy of insurance shall be endorsed to reflect such waiver.
(3) Sufficiency of Insurers. Consultant must secure all required policies of insurance from a good and responsible company or companies authorized to do insurance business in the State of California, with an AM Best’s rating of not less than A:VII.
(4) Proof of Insurance Coverage. Consultant shall furnish to the City Clerk certificates of insurance evidencing the required coverages and policy endorsements at least ten (10) business days prior to the commencement of any services to be performed under this Agreement, and two weeks prior to each policy expiration date thereafter, evidencing that the policy has been renewed or replaced with adequate coverages.
(5) Cancellation or Amendment. The policies 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.
(6) Primary and Non-Contributory. The CGL and Vehicle Liability policies shall be endorsed as Primary and Non-contributory.
c. Right to Modify Insurance Requirements . The City reserves the right to modify these insurance requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
d. Broader Coverages. If Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Section 16. REPORTS
Upon request by City’s Project Manager or as otherwise required by Work Orders issued under this Agreement, including the Scope of Services attached thereto, Consultant shall prepare and submit reports to the City concerning Consultant's performance of the services required by this Agreement.
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Section 17. RECORDS
a. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable City’s Project Manager 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. City’s Project Manager 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 City’s Project Manager, for purposes of performing an audit for a period of five (5) years from the date final payment is made under this Agreement. Pursuant to Government Code section 8546.7, this Agreement may be subject to the examination and audit of the State Auditor for a period of three (3) years from the date such final payment is made.
Section 18. 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 or expiration of this 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 City’s Project Manager 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 City’s Project Manager 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 City’s Project Manager 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 18 shall survive the termination of this Agreement.
Section 19. MODIFICATIONS AND AMENDMENTS; EXTRA SERVICES
a. This Agreement may be modified or amended only by a written instrument signed by both Parties.
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b. During the Initial Term of this Agreement, or during any extensions or option periods if applicable, 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 a Work Order and its accompanying Scope of Services issued under this Agreement, On-Call Environmental Consulting Services but which the Parties did not reasonably anticipate would be necessary at the time of the execution of this thereof. A written instrument signed by both Parties shall be required to authorize performance of and payment for Extra Services.
Section 20. 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, PE, City Engineer
Engineering Department
City of Victorville
14343 Civic Drive
Victorville, CA 92392
To Consultant: Betsy A. Lindsay, CEO/Founder
UltraSystems Environmental, Inc.
16431 Scientific Way
Irvine, CA 92618
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.
c. Either Party may change its address by giving notice in writing to the other Party at the address listed above, and thereafter notices shall be addressed and transmitted to such new address.
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 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 or suspension provides the other Party at least ten (10) days advance written notice of such termination or suspension. In the event of 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.
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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.
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.
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Section 24. 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 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, in a Work Order subsequently executed by the Parties as contemplated hereunder, or in a valid modification or amendment to this Agreement, shall be valid or binding on either Party.
Section 25. 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 or as specified elsewhere in this Agreement, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
Section 26. 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 27. 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 28. 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 29. ASSIGNMENT
Neither this Agreement, nor the rights and duties of the Parties hereunder, shall be assigned by either Party without prior written consent of the other Party.
Section 30. 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. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence.
Section 31. 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 32. 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 33. GENDER; SINGULAR AND PLURAL
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 34. 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 35. 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 36. 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, 14 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
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, including termination, or damages by initiating legal proceedings.
Section 37. 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 38. 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 39. 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 40. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the City until it has been signed by the authorized representative(s) of Consultant, approved as to form by the City Attorney, reviewed by the City’s Risk Manager, and executed by the authorized City personnel or the Mayor. This Agreement shall be considered effective as of the date it is fully executed.
15 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
Section 41. 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 42. 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.
(END OF THIS PAGE)
16 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
THE CITY OF VICTORVILLE ULTRASYSTEMS ENVIRONMENTAL
INC.
By: By:
Name: Elizabeth Becerra Name: Betsy A. Lindsay
Title: Mayor Title: CEO/Founder
Date: Date:
ATTEST
____________________________________
Jennifer Thompson, City Clerk
APPROVED AS TO FORM
___________________________________
Andre de Bortnowsky, City Attorney
RISK MANAGEMENT
___________________________________
Sandra Bostick, Risk Manager
17 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
EXHIBIT A
SCOPE OF WORK FROM RFQ
SCOPE OF WORK
The Ci
ty of Victorville (City) delivers a wide range of capital improvement projects, transportation and mobility improvements, housing and community development programs, public facilities, aviation-related initiatives, and other municipal projects that support economic development, public safety, and quality of life. These projects are funded through a combination of local, State, and Federal funding sources and may be sponsored or administered by the City or by cooperating State, Federal, or regional agencies, including but not limited to the California Department of Transportation (Caltrans), the Federal Highway Administration (FHWA), the Federal Transit Administration (FTA), the U.S. Department of Housing and Urban Development (HUD), and the Federal Aviation Administration (FAA). In certain cases, the City may also participate in projects led by partner agencies in the role of a funding partner, permitting authority, or project stakeholder.
Because environmental clearance must be completed prior to project approval, funding authorization or obligation, or commencement of construction, all City- initiated or City-approved projects must be environmentally reviewed pursuant to the California Environmental Quality Act (CEQA). Projects that involve federal funding or federal approvals may also require to be reviewed pursuant to the National Environmental Policy Act (NEPA). Regardless of whether the environmental review is conducted pursuant to CEQA and/or NEPA, both processes require the City to evaluate the proposed projects and adequately document how they could affect the environment, and define what needs to be done to avoid, reduce, or mitigate those effects before the project is environmentally cleared. Environmental review typically includes:
• Reviewing the project scope, location, and design
• Identifying potential impacts to Aesthetics and visual resources; Air quality; Biological resources (including special-status species and habitats); Cultural, historic, and tribal cultural resources; Geology, soils, and seismic conditions; Greenhouse gas emissions and climate change; Hazards and hazardous materials; Hydrology, water quality, and drainage; Land use and planning; Noise and vibration; Population and housing (as applicable); Public services and utilities; Recreation; Traffic, transportation, and circulation; Energy; Wildfire; Environmental justice
• Determining which environmental laws apply to the project and whether those requirements trigger permits or approvals from local, State, and Federal agencies. (Please Refer to Appendix A for typical regulatory permits required for City projects) • Deciding the level of documentation required (e.g., exemption, study, or full report) • Identifying mitigation measures to reduce impacts
• Coordinating with State and Federal agencies
• Providing opportunities for public review and comment, when required Environmental clearance is achieved through approval of the appropriate environmental document under CEQA and, when applicable, NEPA. Environmental documentation may range from an Exemption or Categorical Exclusion, to a Negative Declaration or Mitigated N egative
EXHIBIT A
SCOPE OF WORK, PROJECT MS26-095-1
18/ Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1 Declaration under CEQA or a FONSI supported by an Environmental Assessment under NEPA, to certification of an Environmental Impact Report or issuance of a Record of Decision following an Environmental Impact Statement. If a project requires the preparation of full Environmental Impact Reports (EIRs) or Environmental Impact Statements (EISs), the City reserves the right, at its sole discretion, to issue a separate solicitation or enter into a separate agreement for such services. The City’s decision may be based on project complexity, scope, cost, funding considerations, contract capacity, or other factors deemed relevant by the City. Nothing herein shall obligate the City to utilize this on-call agreement for large-scale environmental review efforts.
Under CEQA, environmental clearance is provided by the City as the lead agency. However, under NEPA, environmental clearance is provided by the applicable federal lead agency, such as FHWA, FTA, HUD, or FAA. For projects subject to both CEQA and NEPA, environmental review is coordinated; however, each lead agency retains responsibility for approving its respective environmental document prior to project approval, funding authorization, or construction.
The City does not maintain sufficient in -house staff dedicated to performing these specialized environmental compliance services due to the variable nature of project demand, the technical complexity of environmental review, and the need for expertise across multiple regulatory frameworks and agency processes. As a result, the City requires qualified on-call environmental consulting firms capable of providing strategic guidance and technical support throughout the full project lifecycle.
On-call environmental consultants will support the City by evaluating proposed projects and advising on the appropriate environmental compliance pathway; preparing and managing required environmental documentation; conducting technical studies; identifying required permits and approvals; supporting coordination with regulatory agencies; assisting with public review and approvals; and providing construction-phase environmental compliance and monitoring services.
These services are necessary to ensure that City projects achieve timely and defensible environmental clearance, maintain eligibility for State and Federal funding, obtain required permits, and remain in compliance with all applicable environmental laws and regulatory requirements.
In certain cases, the City may also participate in projects led by partner agencies in the role of a funding partner, permitting authority, or project stakeholder. In such instances, the City may require independent review of CEQA and NEPA environmental documents prepared by other agencies to ensure that potential impacts within the City’s jurisdiction are adequately evaluated.
These services may include review of technical studies such as traffic, infrastructure, and public safety analyses; assistance in fulfilling the City’s responsibilities as a Responsible Agency under CEQA; preparation of technical comments and recommendations; and support in the development of appropriate mitigation measures, permit conditions, and regulatory compliance requirements.
EXHIBIT A
SCOPE OF WORK, PROJECT MS26-095-1
19/ Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1 20 Consultant/Professional Services Provider Agreement/UltraSystems Environmental, Inc./Project MS26-095-1
EXH
IBIT B
F
EE SCHEDULE
S
ee Attachment
ON CALL ENVIRONMENTAL FEE SCHEDULE
1 PRIME CONSULTANT NAME: UltraSystems Environmental, Inc.
1. Hourly Rates
Staff Classification Years of
Experience
Hourly Rate
(Year 1)
Year 2
Escalation
(%)
Year 2
Rate
Year 3
Escalation
(%)
Year 3
Rate
Year 4
Escalation
(%)
Year 4
Rate
Notes
Principal / Program Manager 40 $210 4% $218 4% $223 4% $232 Betsy A. Lindsay Project Manager 17 $205 4% $213 4% $221 4% $230 Hina Gupta Senior Environmental Planner 40/19 $179 4% $186 4% $193 4% $201 Robert Reicher Michael Milroy
Environmental Planner 12/10 $173 4% $180 4% $187 4% $194 Stephan Borjeson Ryan Nordness
Senior Biologist 26 $179 4% $186 4% $193 4% $201 Michelle Tollett Cultural Resources Specialist 15 $175 4% $182 4% $189 4% $197 Megan Black-Doukakis Air Quality / Noise Specialist 49 $200 4% $207 4% $216 4% $225 Dr. Michael Rogozen Transportation / Traffic Specialist See sub See sub GIS Specialist 35 $175 4% $182 4% $189 4% $197 Stephen Chesterman Environmental Analyst Varies $168 4% $175 4% $182 4% $189 Staff Field Technician Varies $163 4% $169 4% $173 4% $180 Staff Administrative Support Varies $137 4% $142 4% $148 4% 154 Staff
Certification Statement
Consultant certifies that the rates provided above are fully burdened and include all direct labor, fringe benefits, overhead, administrative costs, and profit. No additional overhead, administrative fees, or indirect costs will be added beyond the rates provided herein and the approved subconsultant markup
Authorized Representative: Betsy A. Lindsay Date: 4/16/2026
Title: _Founder/CEO
ON CALL ENVIRONMENTAL FEE SCHEDULE
2 PRIME CONSULTANT NAME: UltraSystems Environmental, Inc.
4. Reimbursables Expenses
5. Assumptions
Category Description / Assumptions
Travel Assumptions For field visits and public hearings, meetings with staff, or public outreach Fieldwork Assumptions 8 hours per day
Remote Work Assumptions 8 hours per day
Escalation Assumptions Annual, based on Market conditions Other Cost Assumptions
3. Subconsultant Markup Information
Description Rate
Proposed Subconsultant Markup (%) 10%
Expense Category Included in Hourly Rate
(Yes/No) Billing Methodology Rate / Basis
Travel Time No
Mileage No IRS Rate $.0725
Per Diem No Based on GSA Rates
Lodging No Based on GHA Rates
Airfare No Actual Cost
Site Visits No
Field Equipment No See Chart to the right
Printing / Reproduction No Cost + 10%
Other Reimbursables No See Field Equipment Table
ON CALL ENVIRONMENTAL FEE SCHEDULE
3 SUBCONSULTANT NAME: RK ENGINEERING
Staff Classification Years of
Experience
Hourly Rate
(Year 1)
Year 2
Escalation
(%)
Year 2
Rate
Year 3
Escalation
(%)
Year 3
Rate
Year 4
Escalation
(%)
Year 4
Rate
Notes
President 25 $190 4% $198 4% $206 4% $214 Rogier Goedecke Principal 20
15 $190 4% $198 4% $206 4% $214 Justin Tucker, P.E., T.E.
Bryan Estrada, T.E.
Senior Engineer/Planner 13 $150 4% $156 4% $162 4% $168 Jethro Narciso, EIT Engineer/Planner IV 5 $130 4% $135 4% $140 4% $146 Nhi Ly, T.E.
Engineer/Planner III 4 $120 4% $125 4% $130 4% $135 Becca Morrison Engineer/Planner II 3
3 $110 4% $114 4% $119 4% $124 Sabrina Ayala
Matthew Ramon, EIT
Engineer/Planner I 2
2 $100 4% $104 4% $108 4% $112 Bryant Medina
Claire Stokes
Executive Assistant 10 $80 4% $83 4% $86 4% $89 Diana Knoob
Certification Statement
Consultant certifies that the rates provided above are fully burdened and include all direct labor, fringe benefits, overhead, administrative costs, and profit. No additional overhead, administrative fees, or indirect costs will be added beyond the rates provided herein and the approved subconsultant markup
Authorized Representative: Justin Tucker
Date: 4/16/2026
Title: _Principal
ON CALL ENVIRONMENTAL FEE SCHEDULE
4 SUBCONSULTANT NAME: CITADEL EHS
Staff Classification Years of
Experience
Hourly Rate
(Year 1)
Year 2
Escalation
(%)
Year 2
Rate
Year 3
Escalation
(%)
Year 3
Rate
Year 4
Escalation
(%)
Year 4
Rate
Notes
Principal 25
41 315 4% 328 4% 341 4% 355 Poala Gomez-Birenbaum
Mark Drollinger
Senior Engineer 10 278 4% 289 4% 301 4% 313 Cameron Jones Project Engineer 6 198 4% 206 4% 214 4% 223 Mat Coryell Senior Staff
Geologist/Engineer/Scientist
11 179 4% 186 4% 193 4% 201 Tim Lambert
Staff
Geologist/Engineer/Scientist
6 10
155 4% 161 4% 167 4% 174 Quinn Elizondo
Kyle Johnstone
Project Assistant 2 105 4% 109 4% 113 4% 118 Natalia Trejo Field Technician 5
4 141 4% 147 4% 153 4% 159 Dylan Harrington
Joseph Thach
Certification Statement
Consultant certifies that the rates provided above are fully burdened and include all direct labor, fringe benefits, overhead, administrative costs, and profit. No additional overhead, administrative fees, or indirect costs will be added beyond the rates provided herein and the approved subconsultant markup
Authorized Representative:
Mark Drollinger
Date:
4/16/2026