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HomeMy WebLinkAboutContract 1660 e - 0R/8/ . q AGREEMENT FOR DESIGN PROFESSIONAL SERVICES This Agreement is made and entered into as of the first day of July, 2012, by and between the City of Cathedral City, a municipal corporation ("City") and Landmark Consultants, Inc., a California Corporation, ("Design Professional"): RECITALS A. Design Professional is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and B. Design Professional possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. C. City desires to retain Design Professional to render Annual As-Needed professional services as set forth in this Agreement. AGREEMENT SERVICES OF CONSULTANT 1. Scope of Services; Extra Work. A. Design Professional shall furnish the services described in the Scope of Services, attached hereto as Exhibit "B" and incorporated herein by this reference. Design Professional shall provide said services at the time, place, and in the manner specified in the Scope of Services. B. At any time during the term of this Agreement, City may request that Design Professional perform Extra Work. As used herein, Extra Work means any work that is determined by City to be necessary for the proper completion of the services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Design Professional shall not perform, nor be compensated for, Extra Work without written authorization from City. Design Professional shall perform the Extra Work in the manner specified in the Scope of Services. 2. Familiarity with Work. A. Design Professional warrants that it has thoroughly investigated and considered the scope of services has carefully considered how the services should be performed and fully understands the facilities, difficulties and restrictions attending Page 1 Design Professional Services Agreement performance of the services under this Agreement. B. If the services involve work upon any site, Design Professional warrants that it has, or will, investigate the site and is or will be fully acquainted with the existing conditions, prior to commencement of services hereunder. Should the Design Professional discover any latent or unknown conditions that may materially affect the performance of the services hereunder, it shall immediately inform the City of such fact and shall not proceed without written instructions from the City except at its own risk. 3. Standard of Care. Services shall be performed by Design Professional in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised under similar conditions by members of Design Professional's profession currently practicing in California. By delivery of completed work, Design Professional certifies that the work conforms to the requirements of this contract and all applicable federal, state and local laws and the professional standard of care in California. Design Professional shall perform such services and duties in conformance to and consistent with that degree of care and skill consistent with the generally accepted professional standards prevailing at the time the work is performed. In addition, Design Professional represents that its work product does not infringe on any other copyrighted work. If Design Professional's work does infringe on any other copyrighted work, this constitutes willful misconduct under this Agreement. 4. Independent Evaluation. Design Professional is responsible for making an independent evaluation and judgment of all conditions affecting performance of the work, including without limitation site conditions, existing facilities, seismic, geologic, soils, hydrologic, geographic, climatic conditions, applicable federal, state and local laws and regulations, and all other contingencies or design considerations. Data calculations, opinions, reports, investigations, and other similar information provided by the City relating to site, local or other conditions is not warranted or guaranteed, either expressly or impliedly, by the City. 5. Licenses. A. Design Professional represents and warrants to City that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature, which is legally required to practice its profession as well as perform the services as set forth herein. B. Design Professional represents and warrants to City that it shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Design Professional to practice its profession. Page 2 Design Professional Services Agreement C. Design Professional shall maintain a valid City business license. 6. Special Requirements. Additional terms and conditions of this Agreement, if any, which are made part hereof are set forth in the Special Requirements, attached hereto as Exhibit"A"and incorporated herein by this reference. In the event of a conflict between the provisions of the Special Requirements and any other provisions of this agreement, the Special Requirements shall govern. COMPENSATION 7. Contract Sum. Compensation to be paid to Design Professional shall be in accordance with the Schedule of Charges set forth in Exhibit"C",which is attached hereto and incorporated herein by reference. Consultant shall not undertake any work under this Agreement without additional written authorization from the City. No work or payment will be made by the City for future phases without the prior written approval of the City. 8. Payment. A. Design Professional shall submit monthly billings to City describing the work performed during the preceding month. Design Professional's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. B. City shall pay Design Professional no later than 30 days after approval of the monthly invoice by City staff. PERFORMANCE SCHEDULE 9. Time of Performance. The Design Professional shall perform those services set forth in the Scope of Services pursuant to the "Performance Schedule" negotiated for each task order, and incorporated herein by this reference as though set forth at length. 10. Time of Essence. Time is of the essence in the performance of this Agreement. COORDINATION OF WORK 11. Independent Design Professional. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Design Professional, its agents or employees, perform the services required herein, except as otherwise set forth Page 3 Design Professional Services Agreement herein. City shall have no voice in the selection, discharge, supervision or control of Design Professional's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. It is understood that Design Professional, in the performance of the work and services agreed to be performed, shall act as and be an independent consultant and shall not act as an agent or employee of the City. Design Professional shall obtain no rights to retirement benefits that accrue to City's employees, and it hereby expressly waives any claim it may have to any such rights. 12. Conflicts of Interest. A. Design Professional(including principals, associates and professional employees)covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Design Professional's services hereunder. Design Professional further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. B. The City has determined that Design Professional is not a designated employee within the meaning of the Political Reform Act. 13. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Design Professional. Assignments of any or all rights, duties or obligations of the Design Professional under this Agreement will be permitted only with the express consent of the City. Design Professional shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the City. If City consents to such subcontract, Design Professional shall be fully responsible to City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. RECORDS AND REPORTS 14. Ownership of Documents. All plans, studies, documents and other writings prepared by and for Design Professional, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Design Professional for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Design Professional or to any other party. Page 4 Design Professional Services Agreement Design Professional shall, at their expense, provide such reports, plans, studies, documents and other writings to City upon written request. 15. Licensing of Intellectual Property. A. This Agreement creates a nonexclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Design Professional under this Agreement ("Documents and Data"). B. Design Professional shall require all subcontractors to agree in writing that City is granted a nonexclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. C. Design Professional represents and warrants that it has the legal right to license any and all Documents and Data it provides to the City under this Agreement. 16. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data,written information, and other Documents and Data either created by or provided to Design Professional in connection with the performance of this Agreement shall be held confidential by Design Professional. Design Professional shall not, without the prior written consent of City, use such materials for any purposes other than the performance of the services under this Agreement nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Design Professional shall not use the City's name or insignia, photographs relating to project for which Design Professional's services are rendered, or any publicity pertaining to the Design Professional's services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 17. Books and Records. A. Design Professional shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Design Professional to this Agreement. B. Design Professional shall maintain all documents and records which Page 5 Design Professional Services Agreement demonstrate performance under this Agreement for a minimum period of three(3)years,or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Design Professional's address indicated for receipt of notices in this Agreement. D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Design Professional's business, City may, by written request by any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Design Professional, Design Professional's representatives,or Design Professional's successor-in-interest. INSURANCES 18. Insurance Requirements. A. Policies. Design Professional, at its own cost and expense, shall procure and maintain, for the duration of the contract, the following insurance policies. 1. Workers Compensation Coverage. Design Professional shall maintain Workers Compensation Insurance and Employer's Liability Insurance for his/her employees in accordance with the laws of the State of California. In addition, Design Professional shall require each subcontractor to similarly maintain Workers Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non- renewal of all Workers Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Design Professional for City. This provision shall not apply if Design Professional has no employees performing work under this Agreement. If the Design Professional has no employees for the purposes of this Agreement, Design Professional shall sign the Certificate of Exemption from Workers Compensation Insurance attached hereto as Exhibit "E", and incorporated herein by reference. Page 6 Design Professional Services Agreement 2. General Liability Coverage. Design Professional shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Design Professional shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Design Professional arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Liability Coverage. Design Professional shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors or omissions which may arise from Design Professional's operations under this Agreement, whether such operations by the Design Professional or by its employees, subcontractors, or sub consultants. The amount of this insurance shall not be less than one million dollars ($1,000,000) per occurrence. B. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than A:VII and shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured's with respect to liability arising out of work performed by or on behalf of the Design Professional, including materials, parts or equipment furnished in connection with such work or operations. 2. This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have shall be considered excess insurance only and shall not contribute with it. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents. Page 7 Design Professional Services Agreement 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City. C. Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City. At the City's option, Design Professional shall demonstrate financial capability for payment of such deductibles or self-insured retentions. D. Certificates of Insurance. Design Professional shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. 19. Indemnity. To the fullest extent permitted by law, the Design Professional shall indemnify, defend (with independent counsel approved by the City)and hold harmless the City, and its directors, officers, and employees from and against all liabilities(including without limitation all claims, losses, damages, penalties, fines and judgments, associated investigation and administrative expenses, and defense costs, including but not limited to reasonable attorneys' fees, court costs and costs of alternative dispute resolution) regardless of nature or type that arise out of, pertain to, or relate to the negligence, reckless, or willful misconduct of the Design Professional or the acts or omissions of an employee, agent or subcontractor of the Design Professional. The provisions of this paragraph survive completion of the services or the termination of this contract. The provisions of this section are not limited by the provisions of section 18 relating to insurance. ENFORCEMENT OF AGREEMENT 20. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Design Professional. All prior written and oral communications, including correspondence,drafts, memoranda, and representations, are superseded in total by this Agreement. 21. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provisions Page 8 Design Professional Services Agreement under this Agreement. Payment by City under this Agreement shall not be deemed a waiver of defects, even if such defects were known to the City at the time of payment. 22. Rights and 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 or any other default by the other party. 23. Controlling Law Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. 24. Litigation Expenses and Attorneys Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys fees. 25. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 26. Authority to Enter Agreement. Design Professional has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. 27. Termination. City may terminate this Agreement immediately for cause. City may terminate this Agreement without cause upon fifteen days written notice of termination. Upon termination, Design Professional shall be entitled to compensation for services performed up to the effective date of termination. MISCELLANEOUS 28. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. Page 9 Design Professional Services Agreement If to City: Donald E. Bradley City Manager City of Cathedral City 68-700 Avenida Lalo Guerrero Cathedral City, CA 92234 If to Consultant: Greg Chandra, P.E. Area Manager— Palm Desert 77-948 Wildcat Drive Palm Desert, CA 92211 29. Amendments. This Agreement may be modified or amended only by a written document executed by both Design Professional and City and approved as to form by the City Attorney. 30. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 31. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. CITY OFFICERS AND EMPLOYEES 32. Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Design Professional, 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 the Design Professional or to its successor, or for breach of any obligation of the terms of this Agreement. 33. Prohibited Interests. Design Professional maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Design Professional,to solicit or secure this Agreement. Further, Design Professional warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Design Professional, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. 34. Equal Opportunity Employment. Design professional represents that it is an Page 10 Design Professional Services Agreement equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of sex, marital status, race, color, religion, ancestry, natural origin, physical handicap, sexual orientation or domestic partnership status. Such nondiscrimination shall include, but not be limited to, all activities related to initial employment upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 35. Period of Performance. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this contract, the terms of the contract may be extended by contract amendment. 36. Allowable Costs and Payments. A. The method of payment for this contract shall be based on the amount negotiated and agreed to for each Task Order. The total price paid the Design Professional shall include compensation for all work and deliverables, including travel and equipment described in Exhibit "B," Scope of Services of the original contract agreement. No additional compensation shall be paid to the Design Professional, unless there is a change in the scope of the work or the scope of the project. In the instance of a change in the scope of work or scope of the project, adjustment to the agreed upon compensation will be negotiated between the Design Professional and the City. Adjustment in the compensation will not be effective until authorized by contract amendment and approved by the City. B. Progress payments may be made monthly in arrears based on the work completed by the Design Professional. If Design Professional fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, the City shall have the right to delay payment and/or terminate this Agreement in accordance with the provisions of Agreement Paragraph 27, "Termination." C. The Design Professional shall not commence performance of work or services until this contract has been approved by the City and notification to proceed has been issued by the City's Contract Manager. No payment will be made prior to approval of any work, or for any work performed prior to approval of this contract. D. The Design Professional will be reimbursed, as promptly as fiscal procedures will permit, upon receipt by the City's Contract Manager of itemized invoices. Invoices shall be submitted no later than Forty Five (45) calendar days after the performance of work for which the Design Professional is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the Cost Proposal and shall reference this contract number and project title. Final invoice shall Page 11 Design Professional Services Agreement contain the final cost and all credits due the City that include any equipment purchased under the provisions of Paragraph 40, "Equipment Purchase" of this contract. The final invoice shall be submitted within Sixty (60) calendar days after completion of the Design Professional's work. Invoices shall be mailed to the City's Contract Manager at the following address: City of Cathedral City Contract Manager/ City Engineer: Bill Simons, P.E. 68-700 Avenida Lalo Guerrero Cathedral City, CA 92234 37. Cost Principles. A. The Design Professional agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the allowability of cost individual items. B. The Design Professional also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. C. Any costs for which payment has been made to Design Professional that are determined by subsequent audit to be unallowable under 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Design Professional to the City. 38. Retention of Records/Audit. For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the contract pursuant to Government Code 8546.7; the Design Professional, subcontractors, and the City shall maintain all books, documents, papers, accounting records, and other evidence pertaining to the performance of the contract, including but not limited to, the costs of administering the contract. All parties shall make such materials available at their respective offices at all reasonable times during the contract period and for three years from the date of final payment under the contract. The State, the State Auditor, City, FHWA, or any duly authorized representative of the federal government shall have access to any books, records, and documents of the Design Professional that are pertinent to the contract for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this provision. 39. Subcontracting. Page 12 Design Professional Services Agreement A. The Design Professional shall perform the work contemplated with resources available within its own organization; and no portion of the work pertinent to this contract shall be subcontracted without written authorization by the City's Contract Manager, except that, which is expressly identified in the approved Cost Proposal. B. Any subcontract in excess of $25,000 entered into as a result of this contract, shall contain all the provisions stipulated in this contract to be applicable to subcontractors. C. Any substitution of subconcontractors shall be approved in writing by the City's Contract Manager. 40. Equipment Purchase. A. Prior authorization in writing, by the City's Contract Manager shall be required before the Design Professional enters into any unbudgeted purchase order,or subcontract exceeding $5,000 for supplies, equipment, or Design Professional services. The Design Professional shall provide an evaluation of the necessity or desirability of incurring such costs. B. For purchase of any item, service or consulting work not covered in the Design Professional's Cost Proposal and exceeding $5,000 prior authorization by the City's Contract Manager; based on three competitive quotations shall be submitted with the request, or in the absence of bidding must be adequately justified. C. Any equipment purchased as a result of this contract is subject to the following: "The Design Professional shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of$5,000 or more. If the purchased equipment needs replacement and is sold or traded in, the City shall receive a proper refund or credit at the conclusion of the contract, or if the contract is terminated, the Design Professional may either keep the equipment and credit the City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit the City in an amount equal to the sales price. If the Design Professional elects to keep the equipment, fair market value shall be determined at the Design Professional's expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to the City and the Design Professional. If it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by the City." D. All subcontracts in excess $25,000 shall contain the above provisions. 41. Confidentiality of Data. A. All financial, statistical, personal, technical, or other data and information relative to the City's operations, which are designated confidential by the City and made available to the Page 13 Design Professional Services Agreement Design Professional in order to carry out this contract, shall be protected by the Design Professional from unauthorized use and disclosure. B. Permission to disclose information on one occasion, or public hearing held by the City relating to the contract, shall not authorize the Design Professional to further disclose such information, or disseminate the same on any other occasion. C. The Design Professional shall not comment publicly to the press or any other media regarding the contract or the City's actions on the same, except to the City's staff, Design Professional's own personnel involved in the performance of this contract, at public hearings or in response to questions from a Legislative committee. D. The Design Professional shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this contract without prior review of the contents thereof by the City, and receipt of the City's written permission. E.Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article. F. All information related to the construction estimate is confidential, and shall not be disclosed by the Design Professional to any entity other than the City. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 14 Design Professional Services Agreement IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above. CITY OF CATHEDRAL CITY CONSULTANT C1,442 N, 4 Donald E. Bradley, City M ager Greg ha 'dra A S : d/ at Hammers, MMC, City Clerk APPROVED AS TO FORM: Charles R. Green, City Atto ey — Page 15 Design Professional Services Agreement EXHIBIT A SPECIAL REQUIREMENTS Projects may be partially funded by Federal Program funds administered through the California Department of Transportation (Caltrans). As such, the Consultant shall comply with the requirements of 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31 et seq.; 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and Caltrans Local Procedures Manual Processing Procedures for Implementing Federal and/or State Funded Local Public Transportation Projects. Debarment And Suspension Certification. TITLE 49, CODE OF FEDERAL REGULATIONS, PART 29 The Consultant's signature affixed to this Agreement shall constitute a certification,under penalty of perjury,that,except as noted below, he/she or any other person associated therewith in the capacity of owner, partner, director, officer, and manager: • Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; • Has not been suspended, debarred, voluntarily excluded or determined ineligible by any federal agency within the past 3 years; • Does not have a proposed debarment pending; and • Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past 3 years. If there are any exceptions to this certification, insert the exceptions in the following space. Exceptions will not necessarily result in denial of award, but will be considered in determining bidder responsibility. For any exception noted above, indicate below to whom it applies, initiating agency, and dates of action. Notes: Providing false information may result in criminal prosecution or administrative sanctions. The above certification is part of the Agreement. Signing this Agreement on the signature portion thereof shall also constitute signature of this Certification. 1. Rebates, Kickbacks Or Other Unlawful Consideration.The CONSULTANT warrants that this contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right in its discretion;to terminate the contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price;or otherwise recover the full amount of such rebate,kickback or other unlawful consideration. Page 16 Design Professional Services Agreement 2. Prohibition Of Expending Local Agency State Or Federal Funds For Lobbying. A. The CONSULTANT certifies to the best of his or her knowledge and belief that: 1) No state,federal or local agency appropriated funds have been paid,or will be paid by-or-on behalf of the CONSULTANT to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. 2) If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement;the CONSULTANT shall complete and submit Standard Form-LLL,"Disclosure Form to Report Lobbying," in accordance with its instructions. B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, US. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than$100,000 for each such failure. C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000, and that all such sub recipients shall certify and disclose accordingly. 3. Certifications. Caltrans LAPM Exhibits 10-F Certification of Consultant and 10-G Certification of Local Agency,are attached and a part of this Agreement. Page 17 Design Professional Services Agreement 1. CDBG Regulations The work under this Consulting Services Agreement is subject to all applicable Federal, State, and local laws and regulations, including but not limited to the regulations pertaining to the Community Development Block Grant program (24 CFR and Part 570), Executive Order#11246,and other applicable requirements. 2. Access to Records and Records Retention: The Consultant and any sub-consultants shall allow all duly authorized County, Federal, or State officials or authorized representatives access to the work area, as well as all books, documents, materials, papers, and records of the Consultant and any Sub- consultants that are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts, and transcriptions. The Consultant and any sub-consultants further agree to maintain and keep such books, documents, materials, papers, and records, on a current basis, recording all transactions pertaining to this agreement in a form in accordance with generally acceptable accounting principles. All such books and records shall be retained for such periods of time as required by law, provided, however, notwithstanding any shorter periods of retention, all books, records, and supporting detail shall be retained for a period of at least four (4) years after the expiration of the term of this Agreement. 3. Federal Employee Benefit Clause: No member of or delegate to the congress of the United States, and no Resident Commissioner shall be admitted to any share or part of this agreement or to any benefit to arise from the same. 4. Equal Opportunity The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Consultant will ensure that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. The Consultant will take affirmative action to ensure that applicants are employed and the employees are treated during employment, without regard to their race color, religion, sex, or national origin. Such actions shall include, but are not limited to, the following: employment, up-grading, demotion, or transfer; recruitment or recruitment advertising; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in a conspicuous place, available to employees and applicants for employment, notices to be provided by the County setting forth the provisions of this non-discriminating clause. Page 18 5. Section 3 of the Housing and Community Development Act of 1968 Economic Opportunities for Section 3 Residents and Section 3 Business Concerns Sec. 135. 38 Section 3 clause. All Section 3 covered contracts shall include the following clause (referred to as the Section 3 Clause) : A. The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3) . The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD- assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. B. The parties to this contract agree to comply with HUD' s regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the Page 19 person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor' s obligations under 24 CFR part 135. F. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor' s obligations under 24 CFR part 135. G. Noncompliance with HUD' s regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts . H. With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7 (b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7 (b) requires that to the greatest extent Page 20 feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and Section 7 (b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 7 (b) . Page 21 EXHIBIT "B" SCOPE OF SERVICES Material Testing work assignments shall be on an"As needed"basis.Fees shall be determined for a project at the time of assignment based on the hourly rates as provided in Exhibit C.The fee shall be based on a specific scope of work and performance schedule. Each project will be authorized by a task order. Cathedral City reserves the right at all times to suspend or abandon the work under this agreement without cause at the sole discretion of the City. SERVICES TO BE PROVIDED(Shall include,but may not be limited to): 1. The Material Testing consultant shall perform the materials testing services in accordance with the City of Cathedral City Quality Assurance Plan. 2. The consultant shall conduct all testing in a Caltrans Certified Laboratory,or equivalent. All sampling and testing shall be done by personnel and laboratory with the appropriate accreditation for the testing and sampling designated to perform. Proof of the appropriate accreditation shall be submitted with the Proposal. 3. Provide a qualified technician as necessary to conduct density tests on roadway sub-grade,aggregate base,asphalt concrete,slope fill and trench backfill placement as required. The tests will be performed with a nuclear densometer in accordance with ASTM D2922 or sand cone in accordance with ASTM D1556. Maximum density curves(ASTM D1557)will be performed on various material types as they are encountered. Marshall density tests will be performed on the asphalt concrete placed. 4. Provide an ACI-certified technician as necessary to make sets of concrete cylinders as needed and perform slump tests for the curb, gutter, concrete drainage devices, channel slope paving and other minor concrete. 5. Perform compression strength tests on concrete cylinders in accordance with ASTM C39 for bridge structure concrete. 6. Perform extraction/gradation tests in accordance with ASTM D2172/C 136 on the asphalt concrete placed. 7. Consultant shall keep records of all samples and tests in the project files as permanent job records. Materials incorporated into the project,represented by failing tests,must be documented in the project files also. Test results shall cite applicable contract requirements, test and/or analytical procedures used. Provide actual results and include a statement that the item tested or analyzed conforms or fails to conform to specified requirements. Test results shall be signed by a testing laboratory representative authorized to sign certified documentation and forward to the City. 8. Testing Plan and Log shall be maintained by the Consultant. The QC Manager shall record on the "Test Plan and Log' the date the test was conducted, the date the test results were forwarded to the Engineer,remarks and acknowledgement that an accredited or Engineer approved testing laboratory was used. A copy of the updated"Test Plan and Log"to the last daily Contract Quality Control Report of each month. 9. Rework Items list shall be maintained by the Consultant of work performed that does not comply with the Contract. The Contractor shall be responsible for including on this list items needing rework Page 22 Design Professional Services Agreement including those identified by the Engineer. 10. Maximum density tests shall be performed at the job site unless otherwise approved by the City Engineer. 11. Consultant shall keep records of all samples and tests in the project files as permanent job records. Materials incorporated into the project, represented by failing tests, shall also be documented in the project files. 12. Consultant shall use the most economical mode of transportation available consistent with the time element involved. 13. Project Certification — Send a materials certification memorandum to the City Engineer, City of Cathedral City,upon completion of the project. File a copy of the memorandum in the job files. Note all non-conforming materials on the memorandum. This includes materials accepted at reduced pay factors. 14. A California licensed engineer shall sign the materials certification memorandum. 15. Any Non-Compliance results of materials shall be reported to the City's Construction Administrator and City Project Inspector within twenty four(24)hours from the time of sampling. 16. Any Non-Compliance results of materials shall be reported to the City's Construction Manager within twenty four(24)hours from the time of sampling. Page 23 Design Professional Services Agreement EXHIBIT "C" SCHEDULE OF CHARGES Page 24 Design Professional Services Agreement LAN I MARK 77-948 Wildcat Dr. Palm Desert,CA 92211 Office: (760)360-0665 Fax: (760)360-0521 Geo-Engin:e s and Geologists gchandra @landmark-ca.com SUMMARY OF COSTS Pursuant to the Request for Proposals, the undersigned hereby proposes and agrees that on award by the City under this Proposal, and in accordance with the provisions therein stated, to execute a City Design Professional Services Agreement, to provide and to furnish any certificates of insurance and all labor, materials, transportation and services for Material Testing Services for various City projects on an as- needed basis. The Unit Prices listed below shall include labor, materials, equipment, transportation and appurtenant work as is necessary to have the item complete and in place meeting the full intent of this Request for Proposal and the applicable ASTM Testing Method. Hourly rates shall be fully burdened and include all labor, fringe benefits, overhead and profit. The unit prices and hourly rates will be used as the basis for charges and invoices for the various projects. Prevailing Wage- In accordance with Section 1770 of the Labor Code,the City has ascertained and does hereby specify that the prevailing wage rates shall be those provided in Article 1110-20.0, WAGE RATES. The said rates shall include all employer payments that are required by Section 1773.1 of the Labor Code. The City will furnish to the Consultant, upon request, a copy of such prevailing rates. It shall be the duty of the Consultant to post a copy of such prevailing wages at each job site. The following is a summary of costs to provide the services outlined in the Request for Proposals for Professional Materials Testing and will be used as the basis for negotiating a Design Professional Services Agreement: ADDENDUM NUMBER 1 CITY OF CATHEDRAL CITY ANNUAL AS-NEEDED CONTRACT SUMMARY OF COSTS Unit Prices For Geotechnical and Materials Testing Item Item Description Hourly/Unit UNIT No. Price(Dollars) Curb & Gutter Compaction Test: 1 Including travel,certified technician EA $ Q .0Q and equipment Roadway Subgrade Compaction Test: Including travel,certified technician EA S 80. 00 and equipment Roadway Base Compaction Test: 3. Including travel,certified technician EA $ 0. 0 and equipment I 4 Maximum Density Curve(ASTM EA $ f 70. 00 :. D1557) Roadway Asphalt Compaction Test: ��pp 5. Including travel,certified technician EA $ U6'00 and equipment Page 3 LAN !.MARK 77-948 Wildcat Dr. Palm Desert,CA 92211 Office: (760)360-0665 Fax: (760)360-0521 Geo-Engi;,e•e's and Geologists gchandra @landmark-ca.com Item Item DescriptionI IT Hourly/Unit UN No. Price(Dollars) Asphalt Sampling and Marshall j Maximum Density and EA $ 4 5 0 d 0 6. Extraction/Gradation Tests: Including travel,certified technician and equipment Prepare sets of Concrete Cylinders and Perform Compression Strength EA $ y S d`� 7• Tests at seven and twenty-eight days: Including travel,certified technician and equipment 8. Staff Engineer Hour $ 1(O. o 9 Operations Manager Hour $ yi , °° 10. Clerical Support Hour $ SS.O O Bid Amount of each of the above Bid Items must be filled in .nd completed. Final payment will be based upon actual work performed, h. Consul . ure 6/7vOwt1K Con S L2 '7 S N ire of Consultant (7D) 36r-D— 066S Consultant Telephone No. Page 4